                                 NO. 07-08-0355-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL E

                                   JUNE 23, 2009

                        ______________________________


                  CAMBRIDGE PRODUCTION, INC., APPELLANT

                                          v.

                GEODYNE NOMINEE CORPORATION, WILLIAM L.
               ARRINGTON AND AMARILLO NATIONAL BANK, AND
                  COLUMBUS T. HELTON, ET AL., APPELLEES

                      _________________________________

            FROM THE 31ST DISTRICT COURT OF HEMPHILL COUNTY;

               NO. 5933; HON. STEVEN RAY EMMERT, PRESIDING

                        _______________________________

Before HANCOCK and PIRTLE, JJ., and BOYD, S.J.1

                                      OPINION

      This appeal arises from a summary judgment rendered in a suit filed by appellant

Cambridge Production, Inc. (herein Cambridge) against appellees Geodyne Nominee

Corporation (herein Geodyne), Amarillo National Bank (herein ANB), and William L.

Arrington (herein Arrington). The suit also named as defendants numerous mineral and/or



      1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon 2008).
royalty interest owners in Section 33, Block M-1, H&GN Ry. Survey, Hemphill County,

Texas, fully enumerated in Cambridge’s pleading in the underlying suit (herein Section 33

necessary defendants) and Verneal Prater and wife Juanita Prater (herein Section 39

necessary defendants). A recitation of the somewhat complicated procedural history is

necessary to our discussion of the appeal.

       In the suit, Cambridge sought the termination of forty-four (44) oil and gas leases

(the Section 33 leases) and a related pooled unit (the Prater unit) as well as damages.

Cambridge is the lessee under new oil and gas leases (the new Section 33 leases)

covering the same leased premises as the Section 33 leases. The defendants were the

owners of the Section 33 leases. The necessary defendants were the owners of the

mineral interests in Section 33 and the lessors in both the Section 33 leases and the new

Section 33 leases. The Section 39 necessary defendants were the owners of mineral

interests under Section 39 with which the Section 33 leases had been pooled into the

Prater Unit.

       The Section 33 leases provided for a primary term of five years from their date and

for as long thereafter as oil, gas or other hydrocarbons, or other minerals or lease

substances were produced from the leased premises or from lands with which the leased

premises were pooled or unitized. The five year primary term of the Section 33 leases

expired on July 18, 1983, and there was no production of oil, gas, or other minerals during

that term from Section 33.

       In material part, the pooling provisions in all but one of the Section 33 leases

provided:



                                             2
       7. Pooling. Lessee is hereby granted the right, at any time and from time to time,
       whether before or after production, to pool this lease for the production of oil, gas
       or condensate, or any or either of them. . . .

       Such pooling shall be effected by the filing by Lessee of a written designation in the
       county or counties, in which the premises are located, identifying and describing the
       pooled unit. The production of oil, gas or condensate from any zone of the land so
       pooled and the development and operation on such land, including the
       commencement, drilling, completion and operation of a well thereon, or the
       existence thereon of a shut-in gas well, shall be considered and construed and shall
       have the same effect, except for the payment of royalty, as production, development
       and operation, or the existence of a shut-in gas well on the leased premises,
       regardless of the location of the well on the unit.

Thirty-nine (39) of these forty-four leases were subsequently amended to provide that

Section 33 could be pooled with other lands to form a consolidated proration unit, provided

that the lessee must pool at least two-thirds of the lands covered by said lease.

       In pertinent part, the pooling provision in the remaining Section 33 leases provided:

       7. Lessee is hereby granted the right to pool or unitize this lease, the land covered
       by it with any other land, lease, leases, mineral estates or parts thereof for the
       production of oil, liquid hydrocarbons and all gasses and their respective
       constituent products or any of them. . . . Lessee shall file written unit designations
       in the county in which the premises are located. Such units may be designated
       either before or after the completion of wells, and lessee may reduce, enlarge,
       modify or dissolve such units at any time prior to the discovery of oil or gas on the
       pooled acreage, or, after discovery of oil or gas at any time subsequent to the
       cessation of production thereof by filing a written declaration to such effect in the
       same county. Drilling operations and production on any part of the pooled acreage
       shall be treated as if such drilling operations were upon or such production was
       from the land described in this lease whether the well or wells be located on the
       land covered by this lease or not. The entire acreage pooled into a unit shall be
       treated for all purposes, except the payment of royalties on production from the
       pooled unit, as if it were included in this lease . . . .

       On January 3, 1980, the Prater 1-39 well (herein Prater No. 1 well) was completed

in the interval between 14,364 feet and 14,372 feet, and it has continued to produce solely

from that interval since its completion. On May 9, 1980, Geodyne’s predecessor-in-title,

Northern Natural Gas Company, executed and filed in the Deed Records of Hemphill

                                             3
County, the Designation of the Prater No. 1 Unit which pooled the Section 33 leases with

the Section 39 leases. In pertinent part, that unit designation provided:

       . . . Declarant hereby designates a unit to be known as the Prater No. 1 Unit
       (the “Unit”) for the purposes of exploring, drilling, mining and operating for,
       producing and owning hydrocarbons produced from wells classified as “gas
       wells” by the Railroad Commission of Texas, INSOFAR AND ONLY
       INSOFAR as the Leases cover and apply to that certain 704 acres of land
       in Hemphill County, Texas, more particularly described on Exhibit “B”
       attached hereto and made a part hereof for all purposes and the
       stratigraphic equivalent between the depths of 14,634 feet and 14,929 feet
       below the surface encountered in the Prater No.1 Well located thereon (the
       “Unit Acreage”).

The unit designation also included a provision allowing its amendment “at any time and

from time to time in order to (1) correct any error herein, . . . .”

       Geodyne’s predecessors-in-title filed an Amended Designation of Prater Unit No.

1 (Unit Designation No. 2) which amended Unit Designation No. 1 to include a lease

owned by Arrington and George W. Arrington. Beyond adding the new lease, no

substantive changes were made to Unit Designation No. 1 by the second unit designation.

On February 3, 1982, appellees’ predecessors-in-title filed an amended designation of

Prater Unit No. 1 (Unit Designation No. 3) which amended the description of the Prater

Unit to include additional lands in Section 33 but did not change the reference to the

stratigraphic equivalent between the depths of 14,634 feet and 14,929 feet contained in

Unit Designation No. 1. Another unit designation (Unit Designation No. 4) dated May 10,

1990, was prepared by the then owners of the Section 33 leases which purported to

amend the Prater Unit No. 1 to include the stratigraphic equivalent of the interval in which

the producing perforations were located, i.e., 14,364 and 14,372 feet below the surface.

However, this instrument was never filed in the Deed Records of Hemphill County.


                                               4
       It is undisputed that since January 1, 1980, no oil, gas, or other minerals have been

produced from that part of Section 39 located in the areal extent of the Prater Unit, other

than from the Prater 1-39 well, and that production has been from perforations located at

a depth of 14,364 feet to 14,372 feet subsurface. It is also undisputed that since January

1, 1980, no delay rentals or shut-in royalty payments have been made in connection with

appellees’ oil and gas leases covering Sections 33 or 39, no oil, gas, or other minerals

have been produced from Section 33, and no drilling or reworking operations have been

conducted on Section 33.

       It is also undisputed that since January 1, 1980, the Prater 1-39 well has continued

to produce from the perforations located at a depth of 14,364 to 14,372 feet. The

necessary defendants have been paid and accepted royalties from that production to

which they would not otherwise be entitled inasmuch as the well is not located on Section

33.

       On March 18, 1999, Geodyne and Arrington executed, and filed in the Deed

Records of Hemphill County, an amended designation of Prater Unit No. 1 (Unit

Designation No. 5) which recited that the description of the stratigraphic equivalent of

depths between 14,634 and 14,929 encountered in the Prater No.1 Well was the result

of a scrivener error and the designations “should have been limited to the correct

stratigraphic equivalent of depths between 14,364 and 14,929 below the surface

encountered in the Prater No. 1 Well.” On December 30, 2005, ANB (successor to

George W. Arrington) executed and filed in the Deed Records of Hemphill County, an

Amended Designation of Prater Unit No. 1, (Unit Designation No. 6) that ratified and

confirmed Unit Designation No. 5.

                                             5
       In early 1999, Cambridge obtained from the mineral interest owners in Section 33,

oil, gas, and mineral top leases (the new Section 33 leases). Each of these leases

contained a provision that in the event there was a presently existing oil and gas lease on

the premises, the lease covered the lessor’s reversionary interest but was subject to “such

prior lease, lease modification or unitization agreement, insofar as the same is valid . . . .”

They also provided that Cambridge was given “the right to make written demand on behalf

of Lessor . . . to release of record such existing oil and gas lease and to take such other

and further action as may be necessary to obtain such release . . . .”

       On cross-motions for summary judgment, the trial court granted appellees’ motion

for summary judgment and entered judgment declaring the Section 33 leases and the unit

designations creating the Prater Unit were in full force and effect and that the new Section

33 leases were canceled.

       In pursuing the appeal, Cambridge presents three issues for our decision. In the

first issue, it contends:

       (a) In interpreting the Unit Designations, the trial court erred in ignoring the
       plain meaning of the clear and unambiguous language describing the Prater
       Unit by impermissibly using extrinsic evidence (not referred to in the Unit
       Designations) to (i) find an alleged obvious error in the description of the
       Prater Unit, as well as (ii) provide a basis for correcting the alleged error.

       (b) The trial court erred in holding the Unit Designations Nos. 5 and 6 were
       effective to amend the Unit Designations so as to include the stratigraphic
       equivalent of 14,634 feet and 14,929 feet below the surface encountered
       in the Prater No.1 Well.

       (c) The trial court erred in holding that since the Prater Unit created by the
       Unit Designations must be construed to include the producing interval in the
       Prater 1-39 Well, production from that well perpetuated both the Prater Unit
       and the Section 33 Leases, and Cambridge has no cause of action against
       the Defendants.


                                              6
In its second issue, Cambridge contends:

       (a) The summary judgment evidence conclusively established that the
       Section 33 Leases terminated prior to March 3, 1999.

       (b) The summary judgment evidence conclusively established that any claim
       by the Defendants for reformation of the Unit Designations is barred by the
       four year statute of limitations contained in TEX . CIV. PRAC . & REM . CODE
       §16.051.

       (c) The summary judgment evidence conclusively established that the Unit
       Designations were not ambiguous, but must be construed as describing the
       Prater Unit as the stratigraphic equivalent between the depths of 14,634 and
       14,929 feet below the surface as encountered in the Prater No. 1 Well.

        (d) The summary judgment evidence conclusively established that Unit
       Designations No. 5 and 6 were void and without effect as to Section 33.

       (e) Geodyne and Arrington failed to meet their summary judgment burden
       of proof on their affirmative defense of quasi estoppel, so as to preclude
       Cambridge’s Second Motion for Summary Judgment.

In its third issue, Cambridge contends: “Based on the summary judgment evidence, the

Court should reverse the Final Judgment to the extent it grants Defendants’ Motion for

Summary Judgment and render judgment granting Cambridge’s Second Motion for

Summary Judgment on Grounds No. 1, 2, 5 and 6.”

       The first ground of Cambridge’s Second Motion for Summary Judgment posited

that Cambridge was entitled to judgment because it was undisputed that the primary term

of the Section 33 leases expired prior to July 19, 1983, and, since January 1, 1980, no oil,

gas, or other minerals had been produced from Section 33 or from lands pooled therewith

and that no delay rentals or shut-in royalty payments were made in connection with

Section 33 leases. Ground No. 2 argued that the last of the Initial Unit Designations was

executed on February 2, 1982, and that by June 12, 1990, the owners of the Section 33

leases knew that the initial Unit Designations did not include the perforated interval in the

                                             7
Prater No.1-39 Well, which was located in the interval of 14,364 feet to 14,372

subsurface, and any claims of the appellees were barred by the four year statute of

limitations contained in Tex. Civ. Prac. & Rem. Code §16.051. Ground No. 6 argued that

the uncontroverted summary judgment evidence established as a matter of law that at the

time appellees executed and filed the Amended Unit Designations of record, the Section

33 leases had terminated.

      In responding, appellees present four issues for our review. Those issues are:

      Issue One: The Trial Court acted within its discretion in declaring that the
      Prater Gas Unit (including the original Unit Designation, the Initial Unit
      Designations, and all Amended Unit Designations) and Section 33 Leases
      are in Full Force and Effect.

      A. The Trial Court correctly found an obvious error in the description of the
      Prater Unit and a basis for correcting the obvious error.

      B. The Trial Court correctly held that Unit Designations 5 and 6 were
      effective to amend the Unit Designation to include the stratigraphic
      equivalent of 14,364 feet to 14,929 feet below the surface.

      C. The Trial Court correctly held that production from the Prater 1-39 Well
      perpetuated the Prater Unit and the Section 33 Leases.

      Issue Two: The Trial Court correctly declared that the New Section 33
      Leases constitute clouds on Appellees’ title and are void and of no force
      and effect.

      A. Cambridge did not conclusively establish that the Section 33 Leases
      terminated prior to March 3, 1999.

      B. The issue of the four-year statute of limitations barring reformation of the
      Unit Designations is irrelevant.

      C. The Unit Designations were patently ambiguous.

      D. Unit Designations 5 and 6 are valid and in full force as to Section 33.

      Issue Three: The Trial court correctly denied Appellant’s Motion for Partial
      Summary Judgment as to quasi estoppel.

                                            8
       (a) Geodyne and Arrington met their summary judgment burden of proof on
       their affirmative defense of Quasi Estoppel.

       Issue Four: The Trial Court was correct in refusing to find that Appellant
       was a bona fide purchaser vis-a-vis the New Section 33 Leases.


       The standards to be used in reviewing summary judgments are, by now, axiomatic.

In reviewing cross-motions for summary judgment, the reviewing court considers whether

a movant establishes that there is no genuine issue of material fact so that the movant is

entitled to judgment as a matter of law. Western Investment, Inc. v. Urena, 162 S.W.3d

547, 550 (Tex. 2005). When parties file cross-motions for summary judgment and the

court grants one motion and denies the other, the reviewing court should review both

sides’ summary judgment evidence and determine all questions presented. FM Props.

Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). If the trial court’s order

does not specify the grounds upon which it granted summary judgment, the appellate

court must affirm the summary judgment if any of the summary judgment grounds are

meritorious. Id.

       Because it is dispositive of this appeal, we proceed directly to consider appellees’

issue three in which they argue that they met their summary judgment burden of proof on

their affirmative defense of quasi estoppel, and issue number four in which they contend

the trial court was correct in refusing to find Cambridge was a bona fide purchaser vis-a-

vis the new Section 33 leases.

       Quasi estoppel is similar to but different from equitable estoppel. While equitable

estoppel requires proof of a false statement or detrimental reliance, quasi estoppel

requires no such showing. Rather, it precludes a party from accepting the benefits of a


                                            9
transaction and then taking a subsequent inconsistent position to avoid corresponding

obligations or effects. It applies when it would be unconscionable to allow a person or

party to maintain a position inconsistent with one in which he acquiesced or from which

he accepted a benefit. See Stable Energy, L.P. v. Newberry, 999 S.W.2d 538, 548 (Tex.

App.–Austin 1999, pet. denied); Atkinson Gas Co. v. Albrecht, 878 S.W.2d 236, 240 (Tex.

App.–Corpus Christi 1994, writ denied); Steubner Realty 19, Ltd. v. Cravens Road 88,

Ltd., 817 S.W.2d 160, 164 (Tex. App.–Houston [14th Dist.] 1991, no writ.)

       Because Cambridge has no rights in Section 33 as a top lessee except such rights

as it might have acquired under the new Section 33 leases, it cannot terminate the Prater

Unit if the necessary defendants (the Section 33 mineral interest owners) have no such

right. The summary judgment evidence is undisputed that the Section 33 mineral interest

owners have accepted the benefit of revenues of production from the Prater No. 1 well.

It is also undisputed that the Prater No. 1 well is not located on Section 33. Thus, the

Section 33 mineral interest owners would not have received the royalties they have

received over the years but for the Unit Designation of Prater No. 1. Cambridge’s claim

to title under the new Section 33 leases must rest upon repudiation by the top lessors of

Geodyne’s Section 33 leases. In doing so, they would, of necessity, be asserting a right

inconsistent with the benefits that were previously accepted by them. Thus, appellees met

their summary judgment burden of proof and established quasi-estoppel as a matter of

law.

       Additionally, under this record, the trial court did not err in refusing to find that

Cambridge was a bona fide purchaser in connection with the new Section 33 leases. A

bona fide purchaser of real property is one who buys property in good faith for valuable

                                            10
consideration and without notice (actual or imputed) of outstanding claims in a third party

and is an affirmative defense to a title dispute. Madison v. Gordon, 39 S.W.3d 604, 606

(Tex. 2001); Houston Oil Co. v. Hayden, 104 Tex. 175, 135 S.W. 1149, 1152 (1911).

Notice may be constructive or actual. Flack v. First Nat’l Bank, 148 Tex. 495, 226 S.W.2d

628, 631 (1950). Actual notice rests upon personal information or knowledge. Id. at 631.

Constructive notice is notice the law imputes to a person not having personal knowledge.

Id. at 632. One purchasing land may be charged with constructive notice of an occupant’s

claims. Madison v. Gordon, 39 S.W.2d at 606. This implied notice doctrine applies if a

court determines that the purchaser has a duty to ascertain the rights of a third party

possessor. Id.; see also Collum v. Sanger Bros., 98 Tex. 162, 82 S.W. 459, 460 (1904).

When this duty arises, the purchaser is charged with notice of all the occupant’s claims

that the purchaser might have reasonably discovered on proper inquiry. Madison v.

Gordon, 39 S.W.2d at 606; see also Dixon v. Cargill, 104 S.W.2d 101, 102 (Tex. Civ. App.

–Eastland 1937, writ ref’d). The duty arises, however, only if the possession is visible,

open, exclusive, and unequivocal. Madison v. Gordon, 39 S.W.3d at 606; Strong v.

Strong, 128 Tex. 470, 98 S.W.2d 346, 350 (1936).

       Indeed, in Strong, the court described the possession necessary to give

constructive notice as consisting “of open, visible, and unequivocal acts of occupancy in

their nature referable to exclusive dominion over the property, sufficient upon observation

to put an intending purchaser on inquiry as to the rights of such possessor . . . . “ Strong

v. Strong, 98 S.W. 2d at 350. “Possession that meets these requirements – visible, open,




                                            11
exclusive, and unequivocal possession – affords notice of title equivalent to the

constructive notice deed registration affords.” Madison v. Gordon, 39 S.W. 3d at 607.

       The case of Albright v. Hoyt, 57 S.W.2d 342 (Tex. Civ. App.–Texarkana 1933, writ

ref’d), is also instructive in determining whether possession by a land purchaser’s tenant

was sufficient to give constructive notice to an oil and gas lease purchaser’s bona fide

purchaser claim. In that case, Hoyt had brought suit against Albright to enforce a contract

for the sale of land. After the discovery of oil on the land, although Hoyt had paid the

purchase price of the land, Albright refused to surrender title to him and executed an oil

and gas lease to James S. Smith. Noting that at the time when Smith obtained the lease

from Albright, Hoyt’s tenant was in possession of the land, the court held that the

possession by the tenant constituted notice to Smith “of all titles claimed by Hoyt to the

land.” Id. at 345. Thus, it affirmed the trial court’s verdict in favor of Hoyt.

       At the time Cambridge obtained its “top leases,” Geodyne, as a working interest

owner, was in possession of the Prater Unit, was operating a producing well on the Unit

and was paying and had been paying royalties from production on that Unit to Geodyne’s

lessors. Had Cambridge made reasonable inquiry as to the basis upon which Geodyne

was “in possession” of the well and was paying royalties from production to Geodyne’s

lessors, it would have discovered the basis upon which Geodyne claimed in connection

with the Unit Designation and the Section 33 leases.

       Additionally, we note the provisions in the new Section 33 leases that in the event

“there is a presently existing oil and gas lease, modification thereof or unitization

agreement covering the Leased Premises,” that the new leases would be subject thereto

and would vest upon the termination of such prior leases, insofar as they might be valid

                                              12
as well as the provision that the lessee might take whatever actions that were necessary

to obtain releases of such prior leases. Those provisions indicate that Cambridge

recognized that it stood in the position of the necessary parties insofar as the existence

of the Section 33 leases and could claim no greater rights than its lessors. Those

provisions also militate against any bona fide purchaser claim by Cambridge.

      In sum, for the reasons we have articulated above, the trial court’s summary

judgment must be, and is hereby, affirmed.



                                     John T. Boyd
                                     Senior Justice




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