                                       NO. 07-11-0418-CV

                                IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL E

                                      JULY 31, 2012
                             _____________________________

                                 BOMAR OIL AND GAS, INC.,

                                                                     Appellant
                                                  v.

                                         D. MARK LOYD,

                                                                     Appellee
                             _____________________________

            FROM THE 87TH DISTRICT COURT OF FREESTONE COUNTY;

           NO. 10-212B; HONORABLE DEBORAH OAKES EVANS, PRESIDING
                          _____________________________

                                        Opinion
                             _____________________________

Before QUINN, C.J., PIRTLE, J., and BOYD, S.J.1

       Though left to wonder why Bomar Oil and Gas, Inc. did not wait to execute

division orders until it received the title opinion it allegedly commissioned, we affirm.

       Background

       Before us, we have the next chapter in the continuing saga between Bomar Oil

and Gas, Inc. and D. Mark Loyd.            Originally, Loyd sued Bomar to recover monies

related to the production of oil and gas on realty in which he owned an interest as a co-

       1
       John T. Boyd, Senior Justice, sitting by assignment.
tenant. While the interests of other co-tenants apparently were encompassed by a

mineral lease Bomar acquired, his was not. Furthermore, that lease pertained to the

Marie Dodge Well #1.

       Upon re-developing the Marie Dodge, Bomar circulated a division order

specifying the purported ownership interests in the well’s production of the co-tenants

including Loyd and Bomar.        The “After Payout Revenue Interest” recorded on the

document by Bomar and attributable to Loyd was .3055556. Loyd initially disputed that

percentage, believing he owned about a .40 interest. A lawsuit followed wherein Loyd

sought, among other things, an accounting for the mineral production from the well and

expenses related thereto. He also averred that some of the expenses assessed by

Bomar were unreasonable or excessive. Though L.B. Preston, Bomar’s designated

representative and owner, testified to hiring someone to render a title opinion and that

opinion had yet to be rendered at the time of trial, Loyd and Bomar agreed as to the

accuracy of the latter’s estimations. That is, the parties agreed before trial that the “title

dispute” (as referred to by the parties at trial) would be resolved by Loyd accepting that

he owned a .305555 interest in the land. Furthermore, that percentage was used by the

jury to calculate the damages it eventually awarded Loyd against Bomar. Thereafter,

the trial court entered judgment upon the jury’s verdict.

       Bomar appealed. That resulted in the modification of the judgment, being a slight

reduction of the damages awarded, and an affirmance of the judgment as modified.

And, in so rendering its judgment, the majority opinion noted that “Loyd possesses a

.3055555 interest” in the land. Bomar Oil & Gas, Inc. v. Loyd, 10-08-00016-CV, 2009




                                              2
Tex. App. LEXIS 5505, at *32 (Tex. App.–Waco July 15, 2009, pet. denied).2 At that

point, a reasonable person could well have thought that the litigation was over. It was

not.

       Several years later, Loyd executed a separate division order tendered by a

different operator (i.e., Goldston Corporation) covering the development of minerals in a

different horizon of the same realty. Furthermore, his interest in that document was

noted as approximately .20. Bomar learned of this, proclaimed that Loyd’s interest in

the Marie Dodge Well should be no more than .20, revoked its division order with him,

tendered him a new one reflecting the smaller interest, began withholding payment of

proceeds equal to the difference between the 20 and 30 percent, and demanded

repayment of the supposedly excessive monies paid him under the revoked division

order. This resulted in Loyd again suing Bomar to collect the withheld monies and to

obtain a declaration of his percentage interest in the land. The trial court granted his

motion for summary judgment, denied that of Bomar, and awarded Loyd damages. It

also found his ownership interest to be .305555. Bomar appealed, contending that the

trial court erred in granting Loyd’s summary judgment and denying its own.

       Discussion

       Of the several grounds for summary judgment proffered by Loyd, one

encompassed the theory of collateral estoppel.              The latter prevents parties from

relitigating ultimate issues of fact previously litigated. It applies when the issue was fully

and fairly litigated, essential to the prior judgment, and identical to the issue in the


       2
         In explaining why it believed Loyd was entitled to prejudgment interest, the dissent
acknowledged that the issue of title was removed from the case “by Loyd's stipulation” to owning a
.3055555 percent interest. Bomar Oil & Gas, Inc. v. Loyd, 10-08-00016-CV, 2009 Tex. App. LEXIS 5505,
at *38-39 (Tex. App.–Waco July 15, 2009, pet. denied) (dissenting opinion).

                                                 3
pending action. State Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 579 (Tex. 2001).

Whether an issue has been so litigated requires consideration of whether the parties

were fully heard, whether the court supported its decision with a reasoned opinion, and

whether the decision was subject to appeal or was reviewed on appeal. Mower v.

Boyer, 811 S.W.2d 560, 562 (Tex. 1991). And, while the concept of an issue being

actually litigated denotes resolution by some factfinder, be it a judge or jury, that is not

always the case. For instance, guilty pleas dispensing with the need for an actual

criminal trial have been held to collaterally estop the individual from contesting in a later

civil suit ultimate facts encompassed within the plea.      See DeLese v. Albertson’s, Inc.,

83 S.W.3d 827, 831 (Tex. App.–Texarkana 2002, no pet.) (stating that a “guilty plea, as

opposed to a conviction after trial, also collaterally estops a plaintiff from relitigating his

or her guilt because ‘a valid guilty plea serves as a full and fair litigation of the facts

necessary to establish the elements of the crime’”); Johnston v. American Med. Int’l, 36

S.W.3d 572, 576 (Tex. App.–Tyler 2000, pet. denied) (stating that a “plea of guilty, as

opposed to a conviction after trial, also collaterally estops a plaintiff from relitigating his

guilt, since ‘a valid guilty plea serves as a full and fair litigation of the facts necessary to

establish the elements of the crime’”); accord In re Briggs, 350 S.W.3d 362, 369 (Tex.

App.--Beaumont 2011, pet. denied) (holding that the trial court did not err in excluding

testimony by Briggs concerning the reasons why he plead guilty to the sexual offenses

for which he was convicted because “. . . Briggs's guilt had already been determined in

the prior criminal proceedings and could not be relitigated”). According to the panel in

Delese, collateral estoppel applied since Delese not only stipulated to the pertinent facts

during his criminal proceedings but also “. . . had an opportunity to plead not guilty, to



                                               4
call witnesses, to cross-examine witnesses, and have all of the protections afforded a

defendant in a criminal trial, including the requirement of evidence to prove his guilt

beyond a reasonable doubt [and] . . . could have fully placed the burden on the State

so the testimony against him could have been fully developed.” Delese v. Albertson’s,

Inc., 83 S.W.3d at 832. These circumstances provided him “. . . the opportunity to fully

and fairly litigate the facts in the [criminal] case,” according to the court, id., so he could

not dispute in a subsequent civil case that which he stipulated in the criminal matter.

       Deeming a stipulation executed in a prior suit sufficient to give rise to collateral

estoppel seems rather logical. It constitutes not only an agreement or concession made

in a judicial proceeding by parties, but also a judicial admission. Shepherd v. Ledford,

962 S.W.2d 28, 33 (Tex. 1998) (stating that by stipulating to the existence of a common

law marriage, the parties judicially admitted that the couple were common law spouses).

When accepted by the court, the stipulation becomes conclusive as to the fact

conceded, id.; Houston Lighting & Power Co. v. City of Wharton, 101 S.W.3d 633, 641

(Tex. App.–Houston [1st Dist.] 2003, pet. denied), and serves as proof on an issue that

otherwise would be tried.      Houston Lighting & Power Co. v. City of Wharton, 101

S.W.3d at 641. Consequently, “the parties are estopped from claiming to the contrary”

in a subsequent proceeding. Id.; accord Mid-Continent Group v. Goode, No. 07-09-

0181-CV, 2011 Tex. App. LEXIS 6695, at *30 (Tex. App.–Amarillo 2011, no pet.) (so

holding and citing Houston Lighting & Power Co.). Simply put, we see little reason why

litigants who agree to a fact pattern in one case and induce the factfinder to adopt that

fact pattern to resolve that case should not be estopped from questioning the very same




                                              5
facts in a later suit. Nor do we doubt that the foregoing principles should be utilized at

bar.

       Bomar represented to Loyd prior to and during the 2004 litigation that he owned

a .305555 interest in the realty at issue.       While Loyd thought he owned a larger

percentage, he eventually accepted Bomar’s factual representation. Indeed, Bomar’s

president described the situation at trial like this: 1) a title company had been contacted

to provide the information Bomar “would have required” to “resolve the title dispute,” 2)

from our “direct information” “we had his [Loyd’s] interest at 30.55 percent,” 3) the

information from the title company had yet to be received when Loyd sued, 4) the “title

dispute” was “resolved,” by Loyd “. . . agree[ing] to our interest because he found out

the material he needed to have,” and 5) Loyd was entitled to that percentage since that

was what Bomar stated his percentage was via prior correspondence. This exchange,

at the very least, illustrates that Bomar had the opportunity to litigate the “title dispute”

involving Loyd’s ownership interest in the property and present both witnesses and

evidence on the matter had it so wanted. Rather than that happening, the litigants

eventually decided to resolve the “title dispute” by stipulating (that is, agreeing or

conceding) to Bomar’s representation that Loyd owned a .305555 interest in the

property, manifesting that agreement by executing a division order disclosing Loyd’s

interest to be that percentage, and filing the document “with the papers as part of the

[court] record.”

       That the trial court accepted the stipulation and that it was incremental to the

disposition of the 2004 litigation also is clear. The jury charge proves as much. Of the

several issues to be addressed by the jury one involved the determination of damages



                                             6
“for amounts charged against [Loyd’s] proportionate share of production which were not

necessary and reasonable costs of drilling/recompletion, producing, and marketing.” In

making the determination, the jury was instructed by the trial court that “Loyd’s pro-rata

share [was] .305555.” Logic compels us to reasonably infer that had the trial court not

accepted the concession or stipulation, it would not have instructed the jury as it did.

Furthermore, in deciding what damages to award Loyd, the jury had to know his

ownership interest in the land and use it in its calculations.3

        That the appellate court acknowledged, in the majority opinion, Loyd’s interest to

be .305555 is also telling. If anything, it reveals that the revewing court, like Bomar,

Loyd, the trial court, and the jury, similarly accepted the stipulation.

        Nor can anyone reasonably deny that in revoking the division order, Bomar

rejected that to which it previously stipulated. It no longer wanted to pay Loyd a share

of production equal to his .305555 ownership interest, less proportionate expenses.

And, given its own pleadings in this case, (e.g., suing to recover for unjust enrichment

and fraud due to the purported error in calculating that interest per the stipulation), it

attempted to relitigate that very same topic.

        In sum, there exists no material issue of fact regarding the application of

collateral estoppel. The parties to the 2004 judgment and suit giving rise to this appeal

are the same. Furthermore, Loyd’s ownership interest in the same property served as

an ultimate fact in both proceedings. That the topic was fully and fairly litigated by

Bomar via stipulation and testimony is unquestionable, as is Bomar’s current attempt to

        3
        According to our Supreme Court, “unleased cotenants are generally entitled to ‘the value of the
minerals taken less the necessary and reasonable cost of producing and marketing the same’ as
opposed to a fractional royalty from production paid to the lessor.” BP America Prod. Co. v. Marshall, 342
S.W.3d 59, 71-72 (Tex. 2011). So, it would be necessary for a factfinder to know what percentage of the
land Loyd owned to determine what Bomar owed him for producing minerals from it.

                                                    7
collaterally attack that determination. More importantly, Bomar, Loyd, the trial court, the

jury, and the reviewing court accepted the stipulation regarding Loyd’s ownership

interest in the property to adjudicate the 2004 litigation. So, Bomar was and is estopped

from relitigating the matter, and the trial court did not err in so concluding as a matter of

law.4

        Having ruled as we do, it is unnecessary to consider whether any other ground

alleged in Loyd’s motion for summary judgment supported entry of the decree. It is

enough that the decree was warranted under at least one theory. FM Prop. Operating

Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000) (holding that a summary judgment

can be affirmed on any one ground alleged in the motion). That said, we now turn to

Bomar’s other contentions on appeal.

        Revocation of the Division Order

        According to Bomar, it was entitled to revoke the division order pertaining to

production from the Marie Dodge Well.               Whether it did or not is irrelevant to the

outcome.     This is so because the factual issue of ownership previously had been

litigated, and Bomar is collaterally estopped from attacking it. More importantly, division

orders do not supplant leases or deeds. Gravenda v. Strata Energy, Inc., 705 S.W.2d

690, 691 (Tex. 1986).         Given this, their existence or non-existence does not alter

whatever property or royalty interest someone may own.                       The document simply

provides a way for distributing proceeds from the sale of minerals. Id. So, even if the

order could have been revoked, that would not vitiate the prior stipulation that was

        4
          We caution against reading this opinion as purporting to dictate the ownership interests in the
property between Loyd and any strangers to this litigation. The opinion’s ramifications are restricted to
disputes between Loyd and Bomar, and the latter’s successors-in-interest, if any. Furthermore, nothing of
record suggests that anyone other than Bomar questions the extent of Loyd’s ownership interest in the
particular well operated by Bomar.

                                                   8
previously relied upon by all involved and that designated Loyd’s unleased ownership

interest in the land and minerals thereunder to be .305555. The contention is overruled.

       Loyd’s Purported .20488104 Interest 

       Bomar next argues that it “conclusively established” Loyd’s mineral interest to be

a .20488104 interest. Again, our ruling viz collateral estoppel obligates us to overrule

this issue as well.      It also precluded Bomar from recovering damages from Loyd

representing the difference between the .20 interest and the .305555 interest to which it

previously stipulated.

       Counterclaims

       Next, Bomar argues that the trial court erred in granting summary judgment that

barred its counterclaims. This contention too is founded upon the proposition that the

2004 litigation did not resolve the issue about Loyd’s interest in the property. Because

we concluded that it did, we overrule the matter.

       Interest and Attorney’s Fees

       Next, Bomar contends that the trial court erred in awarding Loyd prejudgment

interest and attorney’s fees. We overrule the issues for several reasons.

       First, both are founded upon the notion that there arose a “title dispute” between

the two parties when Loyd executed a division order illustrating a lesser ownership

interest in a well operated by a different operator in a different horizon. So long as that

“title dispute” existed (i.e., whether Loyd’s ownership interest in the minerals being taken

through the Marie Dodge Well #1 was .305555), neither interest nor attorney’s fees

could accrue, according to Bomar. Statute does provide that royalty payments may be

withheld without prejudment interest accruing when there exists a dispute concerning



                                             9
title that would affect the distribution of payments.    TEX. NAT. RES. CODE ANN. §

91.402(b)(1) (West 2011). However, the title dispute must be “legitimate.” Headington

Oil Co., L.P. v. White, 287 S.W.3d 204, 210 (Tex. App.–Houston [14th Dist.] 2009, no

pet.). Here, the purported “title dispute” concerned Loyd’s ownership interest in the

property. It was that same “title dispute” that Bomar’s president discussed during the

2004 trial. It was that same dispute that the parties to the 2004 litigation agreed to

resolve by stipulating to Loyd having a .305555 interest. And, it was that interest used

in calculating the damages awarded and in supposedly ending the 2004 litigation.

Because Bomar was and is collaterally estopped from re-adjudicating the previously

settled “title dispute,” we reject the premise that a legitimate “title dispute” existed

between Loyd and Bomar. So the foundation underlying Bomar’s argument is defective.

       Next, Bomar argues that a portion of the attorney’s fees awarded Loyd were not

reasonable and necessary.     Why they were not goes unexplained.         Nor did it cite

authority supporting its contention. Consequently, the matter was inadequately briefed

and, thus, waived. In re L.M.M., 247 S.W.3d 809, 812 (Tex. App.–Dallas 2008, pet.

denied) (stating that the failure to cite authority or develop an argument results in the

waiver of the issue).

       Next, Bomar argues that the trial court erred in granting summary judgment

against both its unjust enrichment and fraud claims. Through the former, Bomar sought

to recover the monies paid representing the difference between the .305555 interest in

the property and supposed .20 interest. Having determined that it is estopped from

contesting Loyd’s .305555 interest, its claim of unjust enrichment is baseless, as a

matter of law.



                                           10
       As for the matter of fraud, Bomar asserts that it relied upon Loyd’s representation

that he owned a .305555 interest in the land when he actually owned less. Yet, no one

disputes that Loyd originally suggested he owned more than .305555 and that Bomar

disagreed and told him he only owned .305555. And, though Bomar proffered evidence

about engaging a title company to determine who owned what interests, it did not wait

until that opinion was obtained before representing Loyd’s interest to be .305555 and so

stipulating.   That there was a dispute regarding the interest in 2004, that Bomar

accused Loyd of misrepresenting his interest via pleadings filed in the 2004 litigation,

and that Bomar testified to obtaining a title company to determine everyone’s interest is

undisputed. Furthermore, it is the same purported misrepresentation regarding Loyd’s

interest that underlies the fraud allegation urged below. Given that more than four years

lapsed since the time Bomar either knew of or could have reasonably discovered the

supposed misrepresentation, the trial court did not err in concluding that the claim was

barred by limitations. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.004(a)(4) (West

2002) (stating that a person must bring an action for fraud within four years of its

accrual).

       In sum, all issues are overruled, and the trial court’s summary judgment favoring

Loyd is affirmed.



                                         Brian Quinn
                                         Chief Justice




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