                                   NO. 07-01-0281-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                      MAY 29, 2002

                         ______________________________


  J. EVETTS HALEY, JR., AS TRUSTEE OF THE NITA STEWART HALEY TRUST,
   AND AS INDEPENDENT EXECUTOR OF THE ESTATE OF J. EVETTS HALEY,
                               APPELLANT

                                             V.

                        GPM GAS CORPORATION, APPELLEE


                       _________________________________

              FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;

                  NO. 30,715; HONORABLE LEE WATERS, JUDGE

                         _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


      By this appeal following a jury trial, appellant J. Evetts Haley, Jr., as Trustee of the

Nita Stewart Haley Trust, and as Independent Executor of the Estate of J. Evetts Haley,

deceased (Haley) presents five issues (restated in our analysis) complaining of the

judgment rendered that he take nothing on his action against GPM Gas Corporation and
granting relief in favor of GPM concerning a five-acre surface lease.1 Based on the

rationale expressed herein, we affirm.


       On July 11, 1956, Vera Dial Dickey, as lessor, executed a six page written lease

covering the surface of a five acre tract out of Section 50, Block 25, H&GNRR Co. Survey,

Gray County, Texas to Phillips Petroleum Company, as lessee.2 As material here,

paragraph 1 of the lease provides


       Lessor does hereby lease and let to Lessee, to use for any lawful purposes
       in connection with the erection, maintenance, operation and repair of a gas
       booster station and other appurtenances and facilities useful or proper in
       connection with gas pipe lines (but the uses to be made by lessee shall not
       include the erection or use of any dwellings) . . . .
(Emphasis added).


      1
         1. Whether the interpretation of an unambiguous surface lease is a question of law
for the court? Whether a dispute over the scope of a surface lease is a question of law for
the court when the conduct of the parties to the lease is undisputed?
        2. Whether GPM exceeded the scope of a gas booster station surface lease by
erecting a 180' radio communications tower to relay information from over 200 wells
(located as far as 45 miles away from the tower), when 98% of those wells are not
connected to or served by the gas booster station?
        3. Whether a surface lease with an indefinite term is a tenancy at will terminable
at the will of either the lessor or lessee?
        4. Whether the District Court erred by failing to submit a question to the jury
regarding GPM’s trespass on the Haley ranch in connection with the construction and
maintenance of the radio communications tower?
        5. Whether the District Court’s exclusion of expert and lay testimony regarding the
scope of the lease conflicts with the District Court’s decision to submit the question of
lease interpretation to the jury.
       2
        Paragraph four of the lease provided that the lease was assignable and that its
provisions would extend to the parties to the lease, their heirs, successors and assigns.
Now, Haley is the lessor and GPM is the lessee.

                                            2
Paragraph 2 of the lease provides:


              This lease shall be for a period of one (1) year from this date, herein
      called “primary term”; provided, however, that Lessee, its successors and
      assigns, at their option, may extend and continue this lease in effect for
      successive periods of one (1) year each thereafter indefinitely and
      perpetually by payment of annual rentals as hereinafter provided. In order
      to continue this lease in force after the expiration of the primary term, Lessee
      shall pay or tender to the Lessor on or before one year after this date the
      sum of Two Hundred Fifty Dollars ($250.00) as advance annual rental, and
      Lessee shall continue to pay said sum of Two Hundred Fifty Dollars
      ($250.00) as advance annual rental on or prior to the anniversary date of
      this lease for each and any year so long as Lessee desires to continue this
      lease in force.


(Emphasis added). The lease was recorded in the Gray County records and when Haley

purchased the land in 1986, GPM was operating a gas booster station and other

appurtenances on the leased premises.3


      After Haley learned that GPM planned to construct a radio repeater tower on the

leased premises, he wrote GPM on April 2, 1996, and inquired about its plans. By

subsequent letters, Haley expressed his position that the lease did not authorize the

construction of the tower. When efforts to arrive at a consensus failed, GPM proceeded

with the construction of a radio repeater tower in 1996 on the leased premises for the sole

purpose of receiving and relaying to GPM’s office radio signals transmitting gas

measurement information from electronic flow measurement meters installed at various


      3
       Haley does not contend that the annual rentals of $250.00 have not been timely
paid each year in accordance with paragraph 2 of the lease.

                                             3
well heads and central points of delivery of gas in the area to enhance the operation of its

gas gathering system and pipe lines in the area. Contending that construction of the radio

tower was not authorized by the lease and the use and maintenance of the tower

constituted a trespass, Haley filed his original petition in September 1997, contending

that because the lease was a “tenancy at will” he had terminated the lease and by which

he sought damages for trespass, breach of contract, and other relief. By its answer,

among other things, GPM contended that the lease was not a “tenancy at will,” and sought

a declaratory judgment that the lease remained in force and effect, free from interference

by Haley.


       After considering GPM’s motion for summary judgment on May 11, 1998, the trial

court signed its order on July 21, 1998, finding, among other things:


       The lease unambiguously granted GPM an annual option to renew the
       Lease indefinitely and in perpetuity;

       Haley’s attempts to terminate the lease on the basis that it creates a tenancy
       at will are invalid, and do not result in termination of the lease; and

       A material fact issue existed as to whether GPM’s construction of a radio
       repeater tower on the leased property is within the scope of the lease.

The order concluded:


       IT IS, THEREFORE, ORDERED that partial summary judgment is hereby
       entered in favor of GPM in that the Lease unambiguously grants GPM an
       annual option to renew the Lease indefinitely and in perpetuity.



                                             4
       IT IS FURTHER ORDERED that Plaintiff’s Motion for Partial Summary
       Judgment is denied in its entirety. Plaintiff’s attempts to terminate the Lease
       on the basis that it creates a tenancy at will are invalid and did not terminate
       the Lease.

       IT IS FURTHER ORDERED that a genuine issue of material fact exists as
       to whether GPM’s construction of a radio repeater tower on the Lease
       property is within the scope of the Lease and is authorized under the Lease.

Then, upon jury trial, based upon the jury’s finding that GPM did not fail to comply with the

lease agreement by constructing the radio repeater tower, the trial court signed judgment

that Haley take nothing by the suit and declared that (1) the lease is valid and remains in

full force and effect, (2) GPM has the right to continue to maintain and operate its Lee-Tex

Booster, the Tower, and the radio shack located on the lease, and (3) GPM had the right

to continue to use the leased premises for any lawful purpose in connection with the

erection, maintenance, operation, and repair of a gas booster station and other

appurtenances and facilities useful and proper in connection with gas pipelines, provided

however, that it continues to elect to pay the successive one-year annual renewal options

in accordance with the lease.


       Considering appellant’s issues in a logical rather than sequential order, we

commence our analysis by considering Haley’s third issue by which he contends that the

booster station lease established a tenancy at will terminable by either party. We

disagree. Haley did not allege any fraud, accident, or mistake or contend that the July 11,

1956 agreement did not constitute the entire agreement of the parties. We commence our



                                              5
analysis by reviewing paragraph two of the lease. According to the plain language, the

lease was for a fixed term of one year, commencing July 11, 1956. In addition, the

agreement granted lessee the option to extend the lease for “successive periods of one

(1) year each,” so that if lessee timely exercised the option, the lease continued in effect

for a subsequent one year term.             In Willis v. Thomas, 9 S.W.2d 423, 424

(Tex.Civ.App.–San Antonio 1928, writ dism’d w.o.j.), the court held:


                 To create an estate for years, or for any definite term, the
                 lease must be certain, or capable of being made certain, as to
                 the beginning, duration, and termination of the term.


According to the July 11, 1956 agreement, the initial “term” 4 of the lease was July 11,

1956 to July 10, 1957; and upon the exercise of the option by lessee, additional leases

with one year “terms” followed. Because each one year term has its beginning and

termination date, the July 11, 1956 agreement complies with the rule in Willis.


       The option allowing lessee to continue the lease in the July 11, 1956 agreement is

similar to the provision of the lease considered in Hull v. Quanah Pipeline Corp., 574

S.W.2d 610, 611 (Tex.Civ.App.--San Antonio 1978, writ ref’d n.r.e). In rejecting arguments

similar to the contentions of Haley, the court, in part, concluded:


       The lease involved here clearly and specifically shows that it was the
       intention of both the lessor and the lessee that the lessee should have a


       4
           Duration of the lease.

                                               6
       right of perpetual renewal. . . . The provisions of the lease are plain and
       unambiguous and they clearly evidence an intent and purpose to create a
       right of perpetual renewal. The lease is valid and enforceable and the trial
       court’s holdings and findings are correct.


Then, in Philpot v. Fields, 623 S.W.2d 546, 548 (Tex.App.--Texarkana 1982, no writ), after

noting that no legitimate reason exists to prevent parties from freely and intelligently

contracting for the terms of a lease, the court held that a lease for


       a term of 20 years and so long thereafter as the lessee, his heirs,
       successors or assigns, may use the premises for the purpose of maintaining
       and operating a LTX separator, tank and other machinery . . .


upon payment of an annual rental of $75.00 was enforceable and did not create a tenancy

at will terminable at the will of either party.


       Norman, et al. v. Morehouse, et al., 243 S.W. 1104 (Tex.Civ.App.--Amarillo 1922,

writ dism’d w.o.j.), cited by Haley, is not controlling because the lease was partially oral

and the lessee contended that the lease ran “so long as either of the defendants engaged

in the business of making and repairing harnesses, shoes, etc.” Here, however, the

expiration date of each year lease was specific. Further, we have not overlooked Haley’s

reference to Holcombe v. Lorino, 124 Tex. 446, 79 S.W.2d 307 (1935). However, the

former Holcombe opinions, see 76 S.W.2d 509 (Tex.Comm’n.App. 1934) and 71 S.W.2d

71 (Tex.Civ.App.--Galveston 1934), taken together also demonstrate that Holcombe is not

controlling here. Initially, Haley acknowledges that the rental agreement in Holcombe was


                                                  7
oral, whereas the July 11, 1956 lease was written and recorded. Next, according to the

opinion of the Texas Commission of Appeals, 76 S.W.2d at 510, section 922 of the

Revised Code of Ordinances for the City of Houston, provided in part, “[a]ll leases or rental

contracts shall run from month to month revokable at the pleasure of the mayor or city

council,” and in October 1933, the mayor and council gave written notice of revocation of

the rental contract. In contrast, however, the July 11, 1956 agreement under review here

did not give lessor the right to revoke the lease or otherwise avoid the exercise of the

option to renew by lessee. Then, according to the opinion of the Court of Civil Appeals in

Holcombe, 71 S.W.2d at 403, Lorino alleged a tenure for the stall by “reason of its having

long been the uniform practice, custom, and invariable result to those so renting, using,

and improving such stalls . . . ” whereas here the written lease agreement is clear, definite,

and specific. Moreover, the Supreme Court discussion is not a general statement of the

rule. To the contrary, by its statement, “[f]or the purposes of this opinion,” the holding is

“case specific” and not applicable here. Moreover, even if applicable, at any given year

following July 11, 1956, the duration of the lease was the following July 10, unless

extended by lessee’s exercise of the option. Accordingly, Haley’s third issue is overruled.


       By issues one and two,5 as restated, Haley contends that where the lease is

unambiguous and the conduct of the parties is undisputed, the trial court erred by




       5
           Set out in footnote one.

                                              8
submitting a pure question of law involving interpretation of an unambiguous lease to the

jury as a question of fact. We disagree.


       At the charge conference, Haley requested that the trial court submit the following

breach of contract question:6


       Did GPM’s actions in building the radio repeater tower constitute a breach
       of the July 11, 1956 lease agreement?


The trial court refused to submit Haley’s requested question, but instead, submitted the

question, “Did GPM fail to comply with the lease agreement dated July 11, 1956 by

building a radio repeater tower,”7 to which the jury answered no.




       6
         Haley also requested the following instruction: In determining whether a breach has
been committed, you are instructed that a “breach” is any act which exceeds or passes
beyond the bounds of any rights which had been legally granted. For example, where one
enters another’s property under the authority of an expressed or conditional contract but
exceeds the expressed or conditional rights granted in the contract, that person breaches
the contract. A conditional or restricted consent to enter land under a contract creates a
privilege to do so only insofar as the condition or restriction is complied with pursuant to
the terms of the contract. In determining the question of a breach in contract, you are
further instructed that the intent is not a factor.
       7
         Instruction: You are instructed that “fail to comply with the lease agreement” is any
use of the leased property that is not for any lawful purpose in connection with the
erection, maintenance, operation and repair of a gas booster station and other
appurtenances and facilities useful or proper in connection with gas pipe lines. The court
also defined “facility” as something that is built or installed to perform some particular
function and an “appurtenance” as an apparatus, equipment, or accessory that belongs
to or is attached to something else.

                                              9
       Although the record shows that Haley requested that the trial court submit a

question to the jury asking whether the construction of the radio tower constituted a breach

of the July 11, 1956 agreement, and that the trial court refused Haley’s request, the record

does not show that Haley objected to the question which asked substantially the same

question which the jury answered adverse to Haley. Rule 274 of the Texas Rules of Civil

Procedure requires that objections to the charge must point out distinctly the objectionable

matter and the grounds of the objection, otherwise the objection is waived. Wal-Mart

Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999). Also, in order to preserve a

complaint for our review, a party must distinctly specify an objection to the trial court. Tex.

R. App. P. 33.1(a); St. Paul Surplus Lines v. Dal-Worth Tank, 917 S.W.2d 29, 45 (Tex.

App.--Amarillo 1995), aff’d in part and rev’d in part, 974 S.W.2d 51 (Tex. 1998). The

purpose of an objection is two-fold: (1) to notify the trial judge and the other party of the

complaint; and (2) to preserve the complaint for appellate review. Wilkerson v. PIC Realty

Corp., 590 S.W.2d 780, 782 (Tex.Civ.App.--Houston [14th Dist.] 1979, no writ). Moreover,

the complaint on appeal must be the same as that presented in the trial court. Edward v.

Texas Employment Com’n, 936 S.W.2d 462, 466 (Tex.App.--Fort Worth 1996, no writ).

Because Haley did not object to the charge on the ground that it submitted a pure question

of law involving interpretation of an unambiguous lease to the jury, the error was not

preserved and nothing is presented for review. Further, because Haley requested that

the trial court include substantially the same question in the charge to the jury, Haley’s

contention is barred by the doctrine of invited error, which is an equitable doctrine well

                                              10
established in Texas jurisprudence. See General Chemical Corp. v. De La Lastra, 852

S.W.2d 916, 920 (Tex. 1993), cert. dism’d, 510 U.S. 985, 114 S.Ct. 490, 126 L.Ed.2d 440

(1993). Accordingly issues one and two present nothing for review and are overruled.


       By his fifth issue, Haley contends the trial court erred in excluding expert and lay

testimony regarding the scope of the lease that conflicts with the District Court’s decision

to submit the question of lease interpretation to the jury. We disagree. Regarding the

exclusion of evidence offered by J. Evetts Haley, Jr. and Jeff Haley as non-expert

witnesses, the brief does not reference the record where a bill of exceptions is located in

the record and we have found none. Because the suggested testimony of these two

witnesses was not presented by bill of exception, no error is preserved for our review. See

Tex. R. App. P. 33.2; Hartford Ins. Co. v. Jiminez, 814 S.W.2d 551, 552 (Tex.App.--

Houston [1st Dist.] 1991, no writ).


       Haley also contends the trial court erred in excluding the testimony of attorney Tom

Scott as an expert to testify that the construction of the radio tower was not within the

scope of the lease agreement, which is presented by bill of exception. During the pre-trial

conference on the day of trial, among other things, by reviewing the discovery documents,

counsel for GPM, demonstrated that Tom Scott had not been designated as an expert

witness and should not be permitted to testify.


       Rule 193.6(a) of the Texas Rules of Civil Procedure provides in part:


                                            11
       (a) Exclusion of Evidence and Exceptions. A party who fails to make,
       amend, or supplement a discovery response in a timely manner may not
       . . . offer the testimony of a witness . . . who was not timely identified, unless
       the court finds that:
              (1) there was good cause for the failure to timely make,
              amend, or supplement the discovery response; or
              (2) the failure to timely make, amend, or supplement the
              discovery response will not unfairly surprise or unfairly
              prejudice the other parties.


Under subparagraph (b) the burden of establishing good cause or lack of surprise is on

the proponent of the witness and a finding of good cause or the absence of unfair surprise

must be supported by the record. Also, subparagraph (c) provides that the trial court may

grant a continuance so that the opposing party may conduct discovery. In applying Rule

193.6, in Snider v. Stanley, 44 S.W.3d 713, 715 (Tex.App.--Beaumont 2001, pet. denied),

noting that the opposing party had not had the opportunity to take the deposition of the

expert witness, the court upheld the decision of the trial court to exclude the testimony of

the expert witness not timely designated. Also, the court held that the denial of the motion

for continuance was not an abuse of discretion.


       Although the trial court excluded Scott’s testimony, Haley’s brief does not address

the ruling of the trial court, and does not contend that the trial court erred in excluding the

testimony under Rule 193.6. Moreover, Haley does not make any reference to the record

which demonstrates good cause or that the absence of unfair surprise is supported by the




                                              12
record. Accordingly, we conclude the trial court did not err in excluding the testimony of

the non-designated expert witness. Issue five is overruled.


      By his fourth issue, Haley contends the trial court erred by failing to submit a

question to the jury regarding GPM’s trespass on the Haley ranch in connection with the

construction of the maintenance of the radio communications tower. In this regard,

because the jury found that GPM did not fail to comply with the lease agreement by

building the radio repeater tower, and we have overruled issues one and two above, the

question is moot and our consideration of this issue is not necessary to our disposition.

Tex. R. App. P. 47.1.


      Accordingly, the judgment of the trial court is affirmed.



                                         Don H. Reavis
                                           Justice


Publish.




                                           13
