                                                                                            ACCEPTED
                                                                                        04-14-00527-CV
                                                                            FOURTH COURT OF APPEALS
                                                                                 SAN ANTONIO, TEXAS
                                                                                   5/7/2015 10:07:53 AM
                                                                                         KEITH HOTTLE
                                                                                                 CLERK



           No. 04-14-00527-CV
         In the Fourth Court of Appeals                                FILED IN
                                                                4th COURT OF APPEALS
                                                                 SAN ANTONIO, TEXAS

              San Antonio, Texas                                05/7/2015 10:07:53 AM
                                                                    KEITH E. HOTTLE
                                                                         Clerk




   ANNA MARIA SALINAS SAENZ, ET AL.
                                                                APPELLANT
                                    V.

     THORP PETROLEUM CORP., ET AL.
                                                                APPELLEES
                                                            PLAINTIFF/APPELLEE


                  On Appeal from the 229th District Court
                          Starr County, Texas
                              No. DC-04-120



       APPELLANTS’ REPLY BRIEF AND
         SUPPLEMENTAL APPENDIX

Roger S. Braugh, Jr.                      David George
Texas Bar No. 00796244                    Texas Bar No. 00793212
SICO, WHITE, HOELSCHER,                   CONNELLY•BAKER•WOTRING LLP
 HARRIS, & BRAUGH, LLP                    700 JPMorgan Chase Tower
900 Frost Bank Plaza                      600 Travis Street
802 N. Carancahua                         Houston, Texas 77002
Corpus Christi, Texas 78470               Phone: (713) 980-1700
Phone: (361) 653-3300                     Fax: (713) 980-1701
Fax: (361) 653-3333                       dgeorge@connellybaker.com
rbraugh@swbtrial.com

                        Counsel for Appellants


             ORAL ARGUMENT REQUESTED
                                       TABLE OF CONTENTS

Table of Contents ......................................................................................... ii
Index of Authorities .................................................................................... iv
Argument ...................................................................................................... 1
      I.     The Juana Salinas and Leoncio Salinas claimants have
             standing to bring this appeal. ....................................................... 1
             A. The partition agreement purports to take away Juana
                Salinas’ interest in the mineral estate, so the Juana
                Salinas claimants have standing to bring this appeal. ........ 2
             B. Leoncio Salinas continued to own an interest in part of
                the 1,134 acres, but the partition agreement purports to
                take away all of his interest in the 1,134 acres, so the
                Leoncio Salinas claimants have standing to bring this
                appeal. ..................................................................................... 5
                   1.     Leoncio Salinas’ conveyance to Horacio Salinas
                          was not an equitable partition of Leoncio Salinas’
                          interest in the entire 1,134 acres. ................................... 6
                   2.     The Defendants have given up their claim of an oral
                          partition. ........................................................................... 8
                   3.     Fausto Salinas’ testimony that Leoncio Salinas
                          supposedly told him that he no longer had any
                          interest in the property is not conclusive evidence,
                          so it could not support summary judgment in the
                          Defendants’ favor. ............................................................ 9
      II. The partition agreement is not binding because it was not
          signed by all of the affected property owners. ........................... 10
      III. The Defendants were not entitled to summary judgment
           on their affirmative defenses of estoppel, ratification, and
           acquiescence because they did not conclusively establish
           that the Plaintiffs accepted the benefits of the partition. ......... 15




                                                       ii
      IV. The Defendants did not conclusively establish their
          adverse-possession affirmative defense because they
          did not show that they adversely possessed the mineral
          estate, as opposed to merely possessing the surface estate. ..... 18
      V. The Plaintiffs did not waive their claim for past damages. ...... 21
             A. Smith Production joined in Thorp’s summary-judgment
                motion, which raised lack of damages as a summary-
                judgment ground. .................................................................. 22
             B. Thorp’s counsel agreed in writing that the damages
                issue was based on its argument that the partition
                agreement was valid, so it was not a separate issue. ........ 23
             C. The Plaintiffs included the written agreement with
                Thorp in the summary-judgment record and stated
                that, based on the agreement, they understood that
                damages were not a separate issue. .................................... 25
             D. Neither Thorp nor Smith Production objected to the
                Plaintiffs’ characterization of the agreement on the
                damages issue or claimed that the Plaintiffs had to
                provide damages evidence apart from showing that
                the partition agreement was invalid. .................................. 26
             E. This Court should reject the Defendants’ attempt to
                ignore the Rule 11 agreement and obtain an advantage
                through trickery and gamesmanship. ................................. 26
Prayer ......................................................................................................... 28
Certificate of Service.................................................................................. 30
Certificate of Compliance .......................................................................... 31
Supplemental Appendix
      Email Between Plaintiffs’ Counsel and Thorp’s Counsel
      Regarding Scope of Summary-Judgment Motion
      (9 CR 3159-3161)...................................................................................A




                                                       iii
                                 INDEX OF AUTHORITIES

Cases
Benson v. Fox,
 589 S.W.2d 823 (Tex. Civ. App.—Tyler 1979, no writ) .......................... 6
Birdwell v. Am. Bonding Co.,
 337 S.W.2d 120 (Tex. Civ. App. Fort Worth 1960, writ ref’d n.r.e.) .... 20
Bruni v. Vidaurri,
 166 S.W.2d 81 (Tex. 1942) ...................................................................... 14
City of Keller v. Wilson,
 168 S.W.3d 802 (Tex. 2005) .................................................................... 10
Condra v. Grogan Mfg. Co.,
 233 S.W.2d 565 (Tex. 1950) .................................................................... 14
Dixon v. Henderson,
 267 S.W.2d 869 (Tex. Civ. App.—Texarkana 1954, no writ) ............... 20
Draker v. Schreiber,
 271 S.W.3d 318 (Tex. App.—San Antonio 2008, no pet.) ....................... 9
Gamboa v. Gamboa,
 383 S.W.3d 263 (Tex. App.—San Antonio 2012, no pet.) ..................... 21
Garza v. DeMontalvo,
 217 S.W.2d 988 (Tex. 1949) ............................................................... 11-13
Huckabee v. Time Warner Ent. Co.,
 19 S.W.3d 413 (Tex. 2000) ........................................................................ 9
In re Estate of Denman,
  270 S.W.3d 639 (Tex. App.—San Antonio 2008, pet. denied) ................ 5
Joyner v. Christian,
  113 S.W.2d 1229 (Tex. 1938) .................................................................. 15
King Ranch, Inc. v. Chapman,
 118 S.W.3d 742 (Tex. 2003) .................................................................... 14




                                                 iv
Majeed v. Hussain,
 No. 02-08-00679-CV, 2010 WL 4137472 (Tex. App.—Austin
 Oct. 22, 2010, no pet.) ............................................................................. 28
Natural Gas Pipeline Co. v. Pool,
 124 S.W.3d 188 (Tex. 2003) ............................................................... 18-20
Poenisch v. Quarnstrom,
 361 S.W.2d 367 (Tex. 1962) .................................................................... 14
Potter v. Kaufman & Broad Home Sys. of Tex., Inc.,
 137 S.W.3d 701 (Tex. App.—San Antonio 2004, no pet.) ..................... 21
Republic Prod. Co. v. Lee,
 121 S.W.2d 973, 977 (Tex. 1938)................................................. 11, 13-14
Stradt v. First United Methodist Church,
  573 S.W.2d 186 (Tex. 1978) .................................................................... 11
Strong v. Garrett,
  224 S.W.2d 471, 476 (Tex. 1949)............................................................ 14
Thomas v. Sw. Settlement & Dev. Co.,
 123 S.W.2d 290 (Tex. 1939) .................................................... 6, 10, 12, 14

Rules
TEX. R. APP. P. 38.3 .................................................................................... 21
TEX. R. APP. P. 38.7 .................................................................................... 28
TEX. R. CIV. P. 11 ........................................................................................ 25




                                                      v
                                    ARGUMENT

      This Court should reverse the summary judgment and remand

this case for trial.

I.    The Juana Salinas and Leoncio Salinas claimants have standing
      to bring this appeal.

      The Defendants argue that the Plaintiffs who claim their

ownership interests through Original Grantees Juana Salinas and

Leoncio Salinas do not have standing to bring this appeal because

supposedly they have not been harmed by the trial court’s judgment. 1

      The Defendants are incorrect. Those Plaintiffs have been harmed

by the existence of the partition agreement that purports to convey

their interests in the property and by the trial court entering a

declaratory judgment stating that the partition agreement was valid

and enforceable. Therefore, they have standing to bring this appeal




1See Ind. Def. Br. at 38-39; Oil Co. Br. at 16-23. The brief filed by the individual
defendants (Rosalinda Salinas Balderas, et al.) will be referred to as the “Ind. Def.
Br.” The joint brief filed by the oil company defendants Smith Production, Inc. and
Thorp Petroleum Corp., et al., will be referred to as the “Oil Co. Br.”.


                                          1
         A.    The partition agreement purports to take away Juana
               Salinas’ interest in the mineral estate, so the Juana Salinas
               claimants have standing to bring this appeal.

         The Defendants argue that the Plaintiffs claiming through

Original Grantee Juana Salinas do not have standing to bring this

appeal because (1) the Defendants agreed in the trial court that Juana

Salinas continued to own an undivided mineral interest in the 1,134

acres after the partition agreement, and (2) the trial court’s order

regarding payment of the interpleaded royalties reflected that Juana

Salinas continued to own that undivided interest. 2

         Regardless the positions the Defendants took during the litigation,

or how interpleaded royalties were disbursed, the Juana Salinas

claimants have been harmed because the trial court entered a

declaratory judgment stating that the partition agreement was

enforceable.3

         When Juana Salinas sold her interest in the 1,134 acres to her

brother Octavio, she expressly reserved the mineral interest.4 So Juana



2   Ind. Def. Br. at 38 (citing 12 CR 4181; 14 CR 5288); Oil Co. Br. at 16-19.
3   14 CR 5294 (App. A); 9 CR 3313 (App. C).
47 CR 2322-2325; 7 CR 2323 (“It is strictly understood and herein stipulated that
this conveyance is a conveyance solely and alone of the surface to the land
hereinabove described. Grantors do hereby reserve and retain unto themselves,

                                             2
Salinas no longer owned any interest in the surface estate of the 1,134

acres, but still owned her interest in the mineral estate.5 Even though

Juana Salinas did not sign the partition agreement, the partition

agreement purports to convey her undivided interest in the mineral

estate.6

         The partition agreement expressly states that it “is a partition not

only of the surface” of the property, but that it “shall cover and include

all of the minerals of every kind, character and description underlying

each of the tracts” included in the agreement.7 The partition agreement

states that “the allottees of a parcel or tract of land as hereinabove

described shall from henceforth be the owner of all of the minerals of

every kind and character in and under the respective parcel and tract of

land as allotted and set apart to the respective allottees.”8 So each

person received the mineral interests under the surface interest that




their heirs and assigns, all of the minerals of every kind, character and description,
including, but not limited to oil and gas ….”).
5 7 CR 2300; 7 CR 2322-2325. Juana, therefore, had an undivided 1/12 of 15/32
interest in the 1,134 acres’ mineral estate.
6   See Plt. Br. at 16-17.
7   7 CR 2349 (App. F).
8   7 CR 2350 (App. F).


                                          3
they received in the partition agreement.9 The partition agreement,

therefore, purported to convey all of the mineral interests to the 1,134

acres, which included Juana Salinas’ retained undivided 1/12 of 15/32

interest in the mineral estate.10

          The trial court refused to enter a declaratory judgment stating

that the partition agreement was void as to Juana Salinas and the

Plaintiffs claiming through her. 11 Instead, the trial court’s final

judgment expressly states that the partition agreement is “valid and

enforceable for all purposes as to all parties to this suit.” 12 Therefore—

according to the final judgment that the trial court entered—the

partition agreement’s attempt to strip Juana Salinas of her undivided

interest in the mineral estate is valid and enforceable.

          The Plaintiffs claiming through Juana Salinas, therefore, have

been harmed by the final judgment that upholds the validity of the

partition agreement that purports to extinguish their interest in the



9   Id.
10   7 CR 2322-2325; 7 CR 2338-2359 (App. F).
11   14 CR 5294 (App. A).
12 Id.; see also 9 CR 3313 (App. C) (Order Granting Individual Defendants’
Summary-Judgment Motion) (the partition agreement “is valid, binding and
effective for all purposes”).


                                          4
mineral estate. Because those Plaintiffs have been harmed by the trial

court’s final judgment, they have standing to bring this appeal. 13

           B.   Leoncio Salinas continued to own an interest in part of the
                1,134 acres, but the partition agreement purports to take
                away all of his interest in the 1,134 acres, so the Leoncio
                Salinas claimants have standing to bring this appeal.

           The Defendants base their argument that the Leoncio Salinas

claimants do not have standing on their argument that Leoncio Salinas

had no interest in the 1,134 acres at the time of the partition

agreement.14 But as the Plaintiffs explained in their opening brief,

Leoncio Salinas continued to own his undivided interest in 920 of the

1,134 acres after he conveyed his interest in 214 of the 1,134 acres to

his brother Horacio Salinas.15

           Because Leoncio Salinas continued to own an interest in part of

the 1,134 acres at the time of the partition agreement, the Plaintiffs

claiming ownership through him have standing to challenge the

partition agreement.16



13See In re Estate of Denman, 270 S.W.3d 639, 642 (Tex. App.—San Antonio 2008,
pet. denied).
14   Ind. Def. Br. at 39; Oil Co. Br. at 19-23.
15   Plt. Br. at 18-19.
16   Id.


                                              5
                1.     Leoncio Salinas’ conveyance to Horacio Salinas was
                       not an equitable partition of Leoncio Salinas’ interest
                       in the entire 1,134 acres.

         The Defendants claim that Leoncio Salinas and Horacio Salinas

equitably partitioned the 1,134 acres by granting Horacio Salinas total

ownership over 214 acres in exchange for Leoncio Salinas giving up his

entire interest in the entire 1,134 acres.17 But the equitable-partition

argument invalid for at least two reasons:

             • An equitable partition requires a court-entered
               partition decree to be effective, and the Defendants
               neither sought nor obtained a decree; and

             • An equitable partition requires ratification by all
               affected property owners, and Juana Salinas—who
               continued to own an undivided interest in the
               mineral estate of the entire 1,134 acres—did not
               ratify it.

         In their opening brief, the Plaintiffs explained that while

equitable partition is a valid doctrine, it does not apply here.18 The

Plaintiffs explained that an equitable partition becomes effective only

when it is entered by a court as part of a partition decree. 19 The

Defendants never sought—or received—a partition decree in this case,

17   Oil Co. Br. at 20-23.
18   Plt. Br. at 15 n.70.
19Benson v. Fox, 589 S.W.2d 823, 827 (Tex. Civ. App.—Tyler 1979, no writ)
(equitable partition “allows the court to make a partition”) (emphasis added);
Thomas v. Sw. Settlement & Dev. Co., 123 S.W.2d 290, 299-300 (Tex. 1939).


                                          6
so equitable partition is not at issue.20 The Defendants do not dispute

that equitable partition requires a court decree and that they do not

have one.21 That reason, by itself, justifies rejecting the Defendants’

argument that Leoncio Salinas’ conveyance to Horacio Salinas was an

equitable partition.

         In addition to lacking a court equitable-partition decree, the

Defendants also have not shown that all of the affected parties ratified

the alleged Leoncio Salinas/Horacio Salinas partition. The Defendants

base their ratification claim on the fact that the other siblings

supposedly signed the partition agreement.22 But it is undisputed that

Juana Salinas did not sign the partition agreement and, as explained

above, Juana Salinas continued to have an interest in the 1,134 acres at

the time the partition agreement was signed.23 The fact that Juana

Salinas did not ratify the alleged Leoncio Salinas/Horacio Salinas

partition, by itself, justifies rejecting the Defendants’ argument that




 14 CR 5291-5296 (App. A); 14 CR 5307-5309 (App. B); 9 CR 3312-3315 (App. C); 9
20

CR 3316-3317 (App. D).
21   Oil Co. Br. at 23.
22   Ind. Def. Br. at 40; Oil Co. Br. at 22-23.
23   See § I(A) above; 7 CR 2338-2359 (App. F).


                                              7
Leoncio Salinas’ conveyance to Horacio Salinas was an equitable

partition.

         Therefore, Leoncio Salinas’ conveyance to Horacio Salinas did not

convey all of his interest in the 1,134 acres. Instead, Leoncio Salinas

conveyed his undivided interest in 214 of the 1,134 acres, retaining an

undivided interest in 920 acres.

                2.        The Defendants have given up their claim of an oral
                          partition.

         In the trial court, the Defendants argued that even if the written

partition agreement was not valid, the mineral interests had still been

partitioned because all of the owners orally agreed to partition the

1,134 acres’ mineral interests.24 In their opening brief, the Plaintiffs

explained why the Defendants’ “oral partition” argument was invalid. 25

         When forced to defend their “oral partition” argument, the

Plaintiffs gave up. In their brief, the Defendants admit that they are no

longer relying on their claim of a supposed “oral partition” to support

the summary judgment.26


24   7 CR 2303; 8 CR 2843.
25   Plt. Br. at 19-20.
26Ind. Def. Br. at 45 (“The Salinas Defendants do not rely on the oral partition
agreement to show the partition’s validity”).


                                            8
                3.   Fausto Salinas’ testimony that Leoncio Salinas
                     supposedly told him that he no longer had any
                     interest in the property is not conclusive evidence, so
                     it could not support summary judgment in the
                     Defendants’ favor.

           The Defendants claim that Leoncio Salinas told Defendant Fausto

Salinas that he did not have any interest in the 1,134 acres after his

conveyance to Horacio Salinas. 27 The Defendants claim that this

evidence negates the Plaintiffs’ argument that Leoncio Salinas had an

interest in part of the 1,134 acres at the time of the partition

agreement.28

           Because they filed a traditional summary-judgment motion on this

issue, the Defendants had to conclusively negate the Plaintiffs’

argument that Leoncio Salinas continued to have an interest in part of

the 1,134 acres after his conveyance to Horacio Salinas. 29 To be

conclusive evidence, Fausto Salinas’ testimony about what Leoncio

Salinas supposedly told him years ago had to be “clear, positive, direct,

27   Id.
28   Id.
29Huckabee v. Time Warner Ent. Co., 19 S.W.3d 413, 420 (Tex. 2000) (“In Texas,
under our traditional summary judgment procedure, defendants can obtain
summary judgment only if they conclusively negate one of the elements of the
plaintiff’s claim.”); Draker v. Schreiber, 271 S.W.3d 318, 321 (Tex. App.—San
Antonio 2008, no pet.) (“A defendant moving for summary judgment must
conclusively negate at least one essential element of each of the plaintiff’s causes of
action or conclusively establish each element of an affirmative defense.”).


                                           9
otherwise credible, free from contradictions and inconsistencies, and

could have been readily controverted.”30

          The Defendants did not meet the requirement for conclusive

evidence because Fausto Salinas’ testimony about what Leoncio Salinas

supposedly told him could not “have been readily controverted” because

Leoncio Salinas was dead.31 With Leoncio Salinas dead, Fausto Salinas

could concoct any story he wished about what Leoncio Salinas had told

him in private, and there would be no one able to rebut that claim.

That fact alone means that Fausto Salinas’ testimony about what

Leoncio Salinas told him is not conclusive evidence and cannot support

the summary judgment in the Defendants’ favor.

II.       The partition agreement is not binding because it was not
          signed by all of the affected property owners.

          As the Plaintiffs explained in their opening brief, the Texas

Supreme Court has held that “a partition attempted to be made without

joinder of all of the cotenants is ineffective when made.”32 The Supreme

Court has held that a “voluntary partition of land must be based on the



30    City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005).
31    Oil Co. Br. at 2 n.15.
32    Thomas, 123 S.W.2d at 299.


                                             10
agreement of all parties with a possessory interest.”33 Because neither

Juana Salinas nor Leoncio Salinas signed the partition agreement, it is

void and not enforceable against any party. 34

         The Defendants argue that the partition agreement is binding on

the Plaintiffs who claim through the siblings who signed the

agreement.35 So—according to the Defendants’ argument—the

Plaintiffs who claim through the Original Grantees other than Juana

Salinas and Leoncio Salinas are bound by the partition agreement, even

if it is void as to the Plaintiffs claiming through Juana Salinas and

Leoncio Salinas.

         The Defendants rely on two Texas Supreme Court cases to support

their argument that a partition agreement that was not signed by all of

the parties is valid against the signatories: Garza v. DeMontalvo36 and

Republic Production Co. v. Lee.37 A close analysis of these cases,

however, shows that they do not support the Defendants’ argument.

33Stradt v. First United Methodist Church, 573 S.W.2d 186, 190 (Tex. 1978) (“A
voluntary partition of land must be based on the agreement of all parties with a
possessory interest thereto and cannot be the result of a unilateral decision.”).
34   Plt. Br. at 14-15; 7 CR 2338-2359 (App. F).
35   Ind. Def. Br. at 49-52; Oil Co. Br. at 14-16, 23-26.
36   Garza v. DeMontalvo, 217 S.W.2d 988 (Tex. 1949).
37   Republic Prod. Co. v. Lee, 121 S.W.2d 973, 977 (Tex. 1938).


                                             11
Instead, the proper rule is that, as the Texas Supreme Court held in

Thomas v. Southwestern Settlement & Development Co., “a partition

attempted to be made without joinder of all of the cotenants is

ineffective when made.”38

           The Defendants argue that in Garza, the Texas Supreme Court

held that “[a] partition agreement does not have to be signed by all

parties who have a mineral interest under the partitioned acreage in

order to be valid and enforceable.”39 The Defendants misstate the

holding in Garza.

           In Garza, ten family members signed a partition agreement that

attempted to partition the mineral interests.40 But an oil company

owned a working interest in the mineral estate, so not all of the affected

parties had joined in the partition agreement, making it invalid.41 The

oil company, however, did not object to the partition agreement that it

had not signed—instead, it wanted the partition agreement upheld. 42



38   Thomas, 123 S.W.2d at 299.
39   Oil Co. Br. at 14 (citing Garza, 217 S.W.2d at 992).
40   Garza, 217 S.W.2d at 989-92.
41   Id.
42   Id.


                                            12
The Supreme Court held that “under these facts,” the people who signed

the partition agreement were bound by it.43

           In Garza, the Supreme Court expressly held that it was not

addressing the effect on the parties’ rights if the oil company had

objected to the partition agreement.44 Garza, therefore, stands for the

proposition that a partition agreement that is not signed by all parties

is still effective if the parties who did not sign do not object to the

partition.45 That is certainly not the case here, where the Plaintiffs

claiming through non-signatories Juana Salinas and Leoncio Salinas

are objecting to the partition agreement. The Supreme Court expressly

held that Garza does not apply in this circumstance. 46

           Similarly, Republic Production Co. v. Lee does not support the

Defendants argument. The Defendants base their argument on a

statement in Lee taken out of context.47 The Supreme Court stated that

“[e]ven if the instruments of conveyance were void, the partition was

43   Id. at 992.
44Id. (“The question of what rights, if any, the lessee or his assignee would have to
object to a partition by the lessors of their interests, or what would be the effect of
such objection, is therefore not presented in this case.”).
45   Id.
46   Id.
47   See Ind. Def. Br. at 50-51.


                                           13
nevertheless valid as to those who participated therein.”48 But in that

case, the Supreme Court was addressing issues related to adverse

possession and whether co-tenants had notice of ouster.49 That is a

wholly separate issue from whether the Plaintiffs claiming through the

parties who signed the partition agreement are bound by the

agreement, which is the issue here.

           It appears that in the over seventy-five years since it was issued,

Lee has never been cited for the proposition that the Defendants are

claiming. Instead, it has been cited on the issue of whether one co-

tenant has ousted another for purposes of adverse possession.50 So

Texas courts have not interpreted it as applying beyond the adverse-

possession realm.

           This Court, therefore, should follow the Texas Supreme Court’s

rule that “a partition attempted to be made without joinder of all of the

cotenants is ineffective when made.”51 This Court should hold that


48   Lee, 121 S.W.2d at 266.
49   Id.
50 See, e.g., King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 756 (Tex. 2003); Poenisch
v. Quarnstrom, 361 S.W.2d 367, 370 (Tex. 1962); Condra v. Grogan Mfg. Co., 233
S.W.2d 565, 569 (Tex. 1950); Strong v. Garrett, 224 S.W.2d 471, 476 (Tex. 1949);
Bruni v. Vidaurri, 166 S.W.2d 81, 87 (Tex. 1942).
51   Thomas, 123 S.W.2d at 299.


                                         14
because neither Juana Salinas nor Leoncio Salinas signed the partition

agreement, it is void and not enforceable against any party.52

III.     The Defendants were not entitled to summary judgment on their
         affirmative defenses of estoppel, ratification, and acquiescence
         because they did not conclusively establish that the Plaintiffs
         accepted the benefits of the partition.

         The Defendants did not conclusively established their affirmative

defenses of estoppel, ratification, or acquiescence, so they trial court

erred when it granted summary judgment against the Plaintiffs on

those defenses.53

         To establish their equitable affirmative defenses, the Defendants

had to conclusively establish that the Plaintiffs accepted the benefits of

the alleged partition of the mineral interests—not the partition of the

surface estate.54 The Defendants did not do that because they did not

provide any evidence—let alone conclusively establish—that the

Plaintiffs accepted payments based on the mineral estate being

partitioned.55




52   Plt. Br. at 14-15.
53   See Plt. Br. at 29-31; Ind. Def. Br. at 53-59; Oil Co. Br. at 26-31.
54   Plt. Br. at 29-31; Joyner v. Christian, 113 S.W.2d 1229, 1232-33 (Tex. 1938).
55   Oil Co. Br. at 29-31.


                                              15
         The Plaintiffs provided evidence that before 2002, the property

owners were treated as tenants in common with undivided interests in

the mineral estate.56 Before 2002, they were “paid bonus money and

royalties consistent with [their] ownership of an undivided interest in

the mineral estate of the entire property.”57 In was only in 2002—after

Thorp began paying royalties—that the property owners learned that

they “would be treated as partitioned interest owners having no mineral

interest under certain tracts of land within the property.” 58

         Rather than ratifying the partition of the mineral estate and

acquiescing to being treated as owners under a partition, the Plaintiffs

filed this lawsuit in 2004 seeking a declaration that the partition

agreement was void and that they still owned undivided interests in the

mineral estate.59 Because the Plaintiffs provided evidence that they

challenged the attempt to partition the mineral estate soon after they

first learned they were being paid as if there were a partition, the




56   9 CR 2931-2932; 9 CR 2935-2936.
57   9 CR 2931; 9 CR 2935.
58   9 CR 2932; 9 CR 2936.
59   1 CR 41.


                                       16
Defendants did not conclusively establish their equitable affirmative

defenses of ratification, estoppel, and acquiescence.

         The Defendants argue that how the Plaintiffs were paid royalties

regarding the mineral estate is not relevant because it is the actions of

the Plaintiffs, not the other parties, that determines estoppel,

ratification, and acquiescence. 60 The Defendants miss the point. The

Plaintiffs are not arguing that the conduct of the companies paying the

royalties is the focus of the equitable defenses. Instead, the Plaintiffs

are pointing out that if the companies never paid royalties based on the

partition agreement, then the Plaintiffs did not ratify the partition or

acquiesce in it by accepting the royalty payments that were based on an

undivided interest, as opposed to a partitioned interest, so there is no

estoppel.

         The trial court, therefore, erred when it granted summary

judgment against the Plaintiffs on those affirmative defenses.




60   Oil Co. Br. at 31; Ind. Def. Br. at 56-57.


                                              17
IV.      The Defendants did not conclusively establish their adverse-
         possession affirmative defense because they did not show that
         they adversely possessed the mineral estate, as opposed to
         merely possessing the surface estate.

         As the Plaintiffs explained in their opening brief, the Defendants

base their adverse possession claim solely on allegations that they

occupied and used the surface estate.61 They make no allegation that

they took any actions to specifically adversely possess the mineral

estate.62

         The Plaintiffs explained that when a land owner grants an

interest in the mineral estate, while reserving the surface estate, he has

severed the property and created “two separate and distinct estates: an

estate in the surface and an estate in the minerals.”63 Where the

mineral estate has been severed, possession of the surface estate is not

sufficient to adversely possess the mineral estate.64 Instead, “actual



61   8 CR 2562; 7 CR 2770-2772; 8 CR 2843.
62   8 CR 2562; 7 CR 2770-2772; 8 CR 2843.
63Acker v. Guinn, 464 S.W.2d 348, 352 (Tex. 1971); see also Sutton v. Green, No. 14-
01-01043-CV, 2002 WL 1489347, at *3 (Tex. App.—Houston [14th Dist.] July 11,
2002, no pet.) (“It is well settled in Texas that once mineral rights are severed, two
separate and distinct estates (the mineral estate and the surface estate) are created,
each of which is capable of separate ownership and sale.”).
64Natural Gas Pipeline Co. v. Pool, 124 S.W.3d 188, 193 (Tex. 2003) (“Once
severance occurs, possession of the surface alone will not constitute adverse
possession of minerals.”).


                                         18
possession of the minerals must occur.”65 The Texas Supreme Court

has held that “[i]n the case of oil and gas, that means drilling and

production of oil and gas.” 66

           The 1,134 acres’ surface and mineral estates were severed in 1932

when Juan and Ynez Salinas conveyed a 1/32 mineral interest, while

reserving the entire surface estate. 67 At that point, separate surface

and mineral estates were created, and the mineral estate had to be

adversely possessed on its own and not through adverse possession of

the surface estate.68

           The Defendants do not argue that they took any steps to adversely

possess the mineral estate.69 They certainly do not claim that they

conclusively established that they adversely possessed the mineral

estate.70 Instead, the Defendants claim that they can adversely possess

against the mineral estate even when there has been a severance of the

65   Id.
66   Id.
678 CR 2582. They made a second conveyance of ½ (or 16/32) of the mineral
interest in 1940. 8 CR 2584-2585. The two conveyances in 1932 and 1940 resulted
in a conveyance of 17/32 of the mineral estate and a reservation of 15/32 of the
mineral estate. 7 CR 2299; 8 CR 2536; 8 CR 2582-2585; 8 CR 2839.
68   Natural Gas Pipeline, 124 S.W.3d at 193; Acker, 464 S.W.2d at 352.
69   Oil Co. Def. Br. at 32-37.
70   Id.


                                          19
surface and mineral estate, as long as some of the mineral estate is still

attached to the surface estate. 71 The Defendants argue that even

though a majority of the mineral estate had been severed, “a portion

(11/12 of 15/32) of minerals remained unsevered from the surface

estate,” so they could adversely possess the mineral estate by adversely

possessing the surface estate.72

           The Defendants base their argument on two over-half-century-old

cases from other appellate courts, neither of which has ever even been

cited by this Court or the Texas Supreme Court. 73 This Court should

reject those outlier decisions and follow the established Texas rule that

where the mineral estate has been severed—which unquestionably had

happened here—possession of the surface estate is not sufficient to

adversely possess the mineral estate.74 As the Texas Supreme Court

held in 2003, “[o]nce severance occurs, possession of the surface alone

will not constitute adverse possession of minerals.” 75


71   Id. at 32-33.
72   Id. at 33.
73Id. at 33 (citing Birdwell v. Am. Bonding Co., 337 S.W.2d 120, 31 (Tex. Civ. App.
Fort Worth 1960, writ ref’d n.r.e.); Dixon v. Henderson, 267 S.W.2d 869, 873 (Tex.
Civ. App.—Texarkana 1954, no writ)).
74   Natural Gas Pipeline, 124 S.W.3d at 193.
75   Id.


                                         20
         Because the Defendants do not even attempt to claim that they

specifically adversely possessed the minerals, this Court should reverse

the summary judgment based on adverse possession.

V.       The Plaintiffs did not waive their claim for past damages.

         The Defendants argue that the Plaintiffs waived any claim for

past damages by not addressing the issue in their opening brief. 76 They

argue that the Plaintiffs sought damages under their trespass to try

title claim and Defendant Smith Production alleged in its summary-

judgment motion that there was no evidence of damages.77 Because the

trial court granted summary judgment without specifying a ground, the

Defendants argue that means that the trial court granted summary

judgment on the alleged lack of damages, so the Plaintiffs had to

address the issue in their opening brief.78

         The Defendants fail to inform this Court that there was an

agreement under Texas Rule of Civil Procedure 11 filed with the trial

court that removed the damages issue from consideration in the

76   Ind. Def. Br. at 60-62; Oil Co. Br. at 41-42.
77   Ind. Def. Br. at 60-62; Oil Co. Br. at 41-42.
78 Ind. Def. Br. at 60-62; Oil Co. Br. at 41-42; Potter v. Kaufman & Broad Home Sys.
of Tex., Inc., 137 S.W.3d 701, 706 (Tex. App.—San Antonio 2004, no pet.); Gamboa
v. Gamboa, 383 S.W.3d 263, 274 (Tex. App.—San Antonio 2012, no pet.); TEX. R.
APP. P. 38.3.


                                             21
summary-judgment motion.79 The Plaintiffs’ summary-judgment

response expressly addressed that agreement and stated that damages

were not part of the summary-judgment motion.80 The Defendants did

not object to that characterization in their summary-judgment replies.81

         Because damages were not before the trial court, it did not grant

summary judgment based on supposed lack of damages. The Plaintiffs,

therefore, did not need to raise the damages issue in their opening brief.

         A.    Smith Production joined in Thorp’s summary-judgment
               motion, which raised lack of damages as a summary-
               judgment ground.

         In its summary-judgment motion, Defendant Thorp contended

that the Plaintiffs had no damages because all royalties had been paid

based on proper ownership interest.82 Defendant Smith Production

filed a summary-judgment motion that joined in Thorp’s summary-

judgment motion and “incorporate[d] the grounds, argument and




79   See § V(B) below.
80   See § V(C) below.
81   See § V(D) below.
828 CR 2534 (“Plaintiffs have been paid all royalties due based upon their
ownership interest determined as a matter of law.”).


                                        22
evidence in support of summary judgment set out in, referenced by and

attached to” Thorp’s summary-judgment motion.83

         B.    Thorp’s counsel agreed in writing that the damages issue
               was based on its argument that the partition agreement
               was valid, so it was not a separate issue.

         The Plaintiffs’ counsel obtained an agreement from Thorp’s

counsel regarding the scope of the summary-judgment claim that the

Plaintiffs had no damages. The Plaintiffs’ counsel emailed Thorp’s

counsel and stated that he was “unsure as to the scope of the following

Thorp summary judgment contention: ‘Plaintiffs have been paid all

royalties due based upon their ownership interest determined as a

matter of law.’”84 The Plaintiffs’ counsel stated that—based on a

conversation that the lawyers had just had—it was his understanding

that “Thorp’s intention was to merely assert that as a result of Thorp

being correct about the title issues pertaining to the validity of the

partition, the Plaintiffs … would have no right to any royalties from




838 CR 2838; see also 8 CR 2843 (Smith Production hereby incorporates the
grounds, arguments and evidence set out in, referenced by and attached to Thorp et
al. and Faust et al.’s Motions for Summary Judgment as if sully set out herein.”).
Smith Production also joined in the Individual Defendants’ summary-judgment
motion. 8 CR 2838; 8 CR 2843.
84   9 CR 3160 (Supp. App. A).


                                        23
production of the wells and therefore would have no claims to royalty

from such wells.”85

           Thorp’s counsel emailed back.86 He quoted the statement that the

Plaintiffs’ counsel made regarding his understanding of Thorp’s

motion.87 Thorp’s counsel then told the Plaintiffs’ counsel that “[y]our

understanding is correct.”88

           The Plaintiffs’ counsel emailed Thorp’s counsel back and thanked

him “for the clarification.”89 The Plaintiffs’ counsel stated that he would

“focus” his summary-judgment response “to that narrow issue, which, I

understand we both agree would be determined by the court’s ruling as

to the legal effect, if any, of the 1968 partition agreement.”90 In other

words, the only damages argument at issue was that the Plaintiffs were

not entitled to damages because the royalties had been properly paid

under the partition agreement, so the only issue on damages in the




85   Id.
86   9 CR 3159 (Supp. App. A).
87   9 CR 3160 (Supp. App. A).
88   Id.
89   9 CR 3159 (Supp. App. A).
90   Id.


                                       24
summary-judgment motion was whether the partition agreement was

valid.

           The Plaintiffs’ counsel told Thorp’s counsel, “[i]f I am

misunderstanding where you are coming from, please correct me.” 91

Thorp’s counsel emailed back, saying “I think we understand each

other.”92

           C.   The Plaintiffs included the written agreement with Thorp in
                the summary-judgment record and stated that, based on
                the agreement, they understood that damages were not a
                separate issue.

           In their summary-judgment response—which responded to the

summary-judgment motions filed by Thorp, Smith Production, and the

Individual Defendants—the Plaintiffs specifically addressed the issue of

royalty payments and included the email correspondence with Thorp’s

counsel as an exhibit.93 The Plaintiffs stated that, as they “understand

the scope of the motion, no response, beyond its response to the

underlying title issue, is required.” 94


91   Id.
92   Id.
93 9 CR 2926-2927; 9 CR 3159-3160 (Supp. App. A). Because the correspondence
between the Plaintiffs’ counsel and Thorp’s counsel was filed with the trial court, it
is a binding agreement under Texas Rule of Civil Procedure 11. .
94   9 CR 2927.


                                          25
         D.    Neither Thorp nor Smith Production objected to the
               Plaintiffs’ characterization of the agreement on the
               damages issue or claimed that the Plaintiffs had to provide
               damages evidence apart from showing that the partition
               agreement was invalid.

         Both Thorp and Smith Production filed replies to the Plaintiffs’

response to their summary-judgment motions.95 Neither Thorp nor

Smith Production objected to the Plaintiffs’ understanding of the scope

of the summary-judgment motion regarding damages from unpaid

royalties.96

         Smith Production certainly did not claim that it was not bound by

Thorp’s agreement regarding the scope of the Thorp summary-judgment

motion that it had joined.97

         E.    This Court should reject the Defendants’ attempt to ignore
               the Rule 11 agreement and obtain an advantage through
               trickery and gamesmanship.

         The Defendants have been less than forthright regarding this

issue. They did not even tell this Court about the agreement between




95   9 CR 3230-3235; 9 CR 3263-3282.
96   9 CR 3230-3235; 9 CR 3263-3282.
97   9 CR 3230-3235.


                                       26
Thorp and the Plaintiffs regarding this issue.98 Instead, they acted as if

the agreement did not exist.

         The Defendants’ behavior was no better in the trial court. Instead

of raising the issue in their replies to the Plaintiffs’ summary-judgment

response, the Defendants lay behind the log. Rather than telling the

Plaintiffs and the trial court that their damages issue was, somehow,

separate from the validity of the partition agreement, the Defendants

chose to remain silent and not raise the issue until their brief on appeal.

         This Court should reject the Defendants’ attempt to play games

with the judicial process and avoid the Rule 11 agreement. It should

hold that the damages issue in the summary-judgment motions was

limited to whether the partition agreement was valid. The Plaintiffs

addressed the validity of the partition agreement in great detail in their

opening brief. This Court, therefore, should hold that the Plaintiffs did

not waive their damages argument. So if this case is reversed and

remanded, the Plaintiffs can attempt to recover the royalties that they

were not paid because the royalty payments were made based on the

invalid partition agreement.


98   Ind. Def. Br. at 60-62; Oil Co. Br. at 41-42.


                                             27
      To the extent this Court believes that damages were still before

the trial court on summary judgment, the Plaintiffs request leave to

amend their opening brief to address the damages issue.99

                                   PRAYER

      This Court should reverse the summary judgment against the

Plaintiffs and remand this case for trial.




99TEX. R. APP. P. 38.7 (“A brief may be amended or supplemented whenever justice
requires, on whatever reasonable terms the court may prescribe.”); see Majeed v.
Hussain, No. 02-08-00679-CV, 2010 WL 4137472, at *8 (Tex. App.—Austin Oct. 22,
2010, no pet.) (allowing appellant’s opening brief to be amended after oral
argument).


                                       28
                          Respectfully submitted,

                                     /s/ David George
 Roger S. Braugh, Jr.                David George
 Texas Bar No. 00796244              Texas Bar No. 00793212
 SICO, WHITE, HOELSCHER,             CONNELLY•BAKER•WOTRING LLP
  HARRIS, & BRAUGH, LLP              700 JPMorgan Chase Tower
 900 Frost Bank Plaza                600 Travis Street
 802 N. Carancahua                   Houston, Texas 77002
 Corpus Christi, Texas 78470         Phone: (713) 980-1700
 Phone: (361) 653-3300               Fax: (713) 980-1701
 Fax: (361) 653-3333                 dgeorge@connellybaker.com
 rbraugh@swbtrial.com

                      Counsel for Appellants


May 7, 2015




                                29
                       CERTIFICATE OF SERVICE

     I certify that on May 7, 2015, I served a copy of this document
upon the following individuals by certified mail:

         Lee S. Gill
         JONES, GILL LLP
         6363 Woodway, Suite 1100
         Houston, Texas 77057
         Attorney for Thorp Petroleum Corporation;
         El Paso Production Company; El Paso E&P
         Company, LP; El Paso Exploration & Production
         Management, Inc.; El Paso Exploration &
         Production; Stanco Land Management, LLC and
         Meredith Land & Minerals Co.

         Mark Hanna
         SCOTT, DOUGLASS & MCCONNICO, L.L.P.
         600 Congress Avenue, Suite 1500
         Austin, Texas 78701-3589
         Attorney for Smith Production Inc.

         O.C. Hamilton, Jr.
         ATLAS & HALL, L.L.P.
         P.O. Drawer 3725
         McAllen, Texas 78502
         Attorney for Fausto Salinas; Rosalinda Salinas
         Balderas; Linda Mandes; Veronica Casas Campbell;
         Elda Salinas Ponce; Cindy Casas Reyna;
         Eloida Salinas; and D-FOX, Ltd.


                            /S/ David George
                            David George




                                   30
                    CERTIFICATE OF COMPLIANCE

     This brief contains 5,455 words, excluding the caption, signature
blocks, and certificates. This motion was prepared using Microsoft
Word 2013 in 14 point (12 point in footnotes) Century Schoolbook (Arial
headings) font.

                           /S/ David George
                           David George




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