                                 Fourth Court of Appeals
                                         San Antonio, Texas
                                    MEMORANDUM OPINION

                                             No. 04-18-00129-CV

                                          Stanton P. BELL, et al.,
                                         Appellants/Cross-Appellees

                                                        v.

                         CHESAPEAKE ENERGY CORPORATION, et al.,
                                 Appellees/Cross-Appellants

                      From the 224th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2016CI22093
                           Honorable Cathleen M. Stryker, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Irene Rios, Justice
                  Beth Watkins, Justice

Delivered and Filed: March 13, 2019

AFFIRMED IN PART; REVERSED AND RENDERED IN PART

           This is a permissive accelerated appeal. See TEX. R. CIV. P. 168; TEX. R. APP. P. 28.3; TEX.

CIV. PRAC. & REM. CODE § 51.014(d). It involves the interpretation of two Oil, Gas and Mineral

Leases 1 (“Leases”) agreed by the parties to be representative of numerous leases involved in

multidistrict litigation referred to as In re: Chesapeake Eagle Ford Royalty Litigation.

Appellants/Cross-Appellees (collectively referred to as “Bell” 2) sued Appellees/Cross-Appellants


1
  The two leases are the November 12, 2009 Bell Lease (“Bell Lease”) and the April 27, 2010 Ward Lease (“Ward
Lease”).
2
  To avoid confusion, when the discussion relates only to the Ward Lease, the lessors will be referred to as “Ward.”
                                                                                          04-18-00129-CV


(collectively referred to as “Chesapeake”) asserting a multitude of claims, including a claim for

breach of contract by failing to pay Compensatory Royalty as provided for under the Leases. The

issues certified by the trial court, and accepted by this court, for permissive interlocutory appeal

are:

           1. Under the unambiguous provisions of the Leases, is the formula for calculating
              Compensatory Royalty based on take points of the Adjacent Well within the
              triggering distance(s) set forth in the Leases?

           2. Under the unambiguous provisions of the Leases, does the reasonably prudent
              operator standard apply, in whole or in part, to the lessee’s offset obligations?

           The first issue is the subject of Bell’s appeal; the second issue is the subject of

Chesapeake’s cross-appeal.

                                                        Facts

           Both issues presented in this case require interpretation of the language of the Leases. And,

while the Leases contain similar provisions, there are some variations in the language employed.

For that reason, we set out the relevant language of each Lease in detail.

Language contained in both Leases:

           ROYALTY – OIL GROSS PROCEEDS DEFINITION. “Gross Proceeds” as
           used herein shall mean the total proceeds received by Lessee for any sale of Oil or
           condensate; . . . . 3

           ROYALTY – GAS GROSS PROCEEDS DEFINITION. “Gross Proceeds” as
           used herein shall mean the total proceeds received by Lessee for any sale of such
           Gas; . . . . 4

           HORIZONTAL OR VERTICAL WELLS. A “Horizontal Well” shall mean a
           well where it is necessary to cut a window for the purpose of drilling horizontally
           a distance of over thirty (30) feet from the vertical well bore and for which the TRC
           or the appropriate state agency requires directional or inclination surveys to be filed
           and a “Vertical Well” shall mean a well having a vertical drain hole which shall not
           be deviated from the vertical except randomly to straighten a hole which has



3
    Section 4C in the Bell Lease; section 3C in the Ward Lease.
4
    Section 4E in the Bell Lease; section 3E in the Ward Lease.


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                                                                                        04-18-00129-CV


           become crooked in the normal course of Drilling, or to sidetrack a portion of a hole
           because of mechanical difficulty in Drilling. 5

Language contained in the Bell Lease:

           18.     OFFSET REQUIREMENT AND COMPENSATORY ROYALTY. In
           the event a well (“Adjacent Well”) producing Oil or Gas in Paying Quantities is
           drilled and completed after the date of this Lease on land under which Lessor does
           not own the quantity of minerals or royalty as under the lands covered by this Lease,
           and such Adjacent Well is draining the Leased Premises or is deemed draining if
           the Adjacent Well is located within three hundred thirty (330) feet of the Leased
           Premises, or, when Lessee has an economic interest in said Adjacent Well and said
           Adjacent Well is located within four hundred sixty seven (467) feet of the Leased
           Premises (in the case of a Vertical Well, distance will be measured from the surface
           location or bottom hole location of the Adjacent Well, whichever is closer; in the
           case of a Horizontal Well distance will be measured from the surface location or
           the subsurface path of a horizontal drainbore, from its point of entry into the
           productive horizon to its terminus, whichever is closer), then Lessee agrees to drill
           such offset wells which is [sic] reasonably designed to protect the Leased Premises
           from drainage, or at the option of Lessee, shall pay to Lessor the Compensatory
           Royalties set forth below, or execute and deliver to Lessor a release in recordable
           form releasing acreage in an amount equivalent to the number of acres required or
           permitted by the Texas Railroad Commission to drill an offset well to the formation
           of such Adjacent Well. Lessee shall have ninety (90) days from the date of first
           production of such Adjacent Well within which to Commence Actual Drilling
           Operations of an offset well or release offsetting acreage, and thereafter, Lessee’s
           sole obligation shall be to pay Compensatory Royalties as set forth herein. . . .

                  In lieu of Drilling an offset well required hereunder or releasing acreage as
           provided above, then Lessee shall pay to Lessor as a Compensatory Royalty an
           amount equal to the Royalty Share of Gross Proceeds of production from the
           Adjacent Well . . . .

Language contained in the Ward Lease:

           17.    DUTY TO EXPLORE DEVELOP AND PROTECT. Lessee also hereby
           expressly covenants and agrees to diligently and fully explore, develop, and protect
           the Leased Premises as a reasonably prudent operator.

           18.     OFFSET REQUIREMENT AND COMPENSATORY ROYALTY. In
           the event a well (“Adjacent Well”) producing Oil or Gas in Paying Quantities is
           drilled and completed after the date of this Lease on land under which Lessor does
           not own the quantity of minerals or royalty as under the lands covered by this Lease,
           and such Adjacent Well is draining the Leased Premises or is deemed draining if
           the Adjacent Well is located within the spacing distance as set in the current field

5
    Section 7D in both Leases.


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                                                                                     04-18-00129-CV


       rules as promulgated by the Railroad Commission of Texas but must do so if the
       adjacent well is within four hundred sixty-seven (467) feet of the Leased Premises,
       distance will be measured from the surface location or bottom hole location of the
       Adjacent Well, whichever is closer; in the case of a Horizontal Well distance will
       be measured from the surface location or the subsurface path of a horizontal
       drainbore, from its point of entry into the productive horizon to its terminus,
       whichever is closer), then Lessee shall within one hundred eighty (180) days after
       commencement of production from such Adjacent Well, Commence the Actual
       Drilling Operations for the Drilling of an offset well on the Leased Premises and
       diligently pursue such Operations to the horizon in which such Adjacent Well is
       producing, or at the option of Lessee, shall pay to Lessor the Compensatory
       Royalties set forth below, or execute and deliver to Lessor a release in recordable
       form surrendering acreage in an amount equivalent to the Well Tract of the
       Adjacent Well. . . .

              In lieu of Drilling an offset well required hereunder, Lessee shall pay to
       Lessor as a Compensatory Royalty an amount equal to the Royalty Share of gross
       proceeds of production from the Adjacent Well . . . .

       Bell alleges that Adjacent Wells have been drilled within the distances stated in the Leases,

and that Chesapeake has not drilled offset wells, released acreage, or paid Compensatory Royalties

pursuant to Paragraph 18.

       Chesapeake filed a motion for summary judgment seeking to establish that the Leases

incorporate a “reasonably prudent operator” standard into Paragraph 18. The MDL court denied

the motion, stating,

       under the unambiguous provisions of the Leases, the reasonably prudent operator
       standard does not govern performance of the lessee’s offset obligations. For
       drainage claims under the “deemed drainage” provision, under the unambiguous
       provisions of the Leases, Plaintiffs are not required to show either: (1) actual,
       substantial drainage or (2) that a reasonably prudent operator under same or similar
       circumstances would drill an offset well to protect against substantial drainage and
       with a reasonable expectation of profit.

This ruling is the subject of Chesapeake’s cross-appeal.

       Chesapeake also filed a motion for summary judgment seeking to establish that

Compensatory Royalty should be computed based on production only from take points within




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                                                                                       04-18-00129-CV


certain trigger distances stated in the Leases rather than production from the entirety of a horizontal

well. The MDL court granted that motion, in part, stating,

       Compensatory Royalties shall be calculated based on their Royalty Share (where
       appropriate, diluted by Unit percentage) of the production volume allocable and
       attributable to the perforated portion of the well, i.e. the “take points,” located
       within the deemed drainage trigger distance(s) set forth in the Lease(s), as a
       percentage of the total perforated portion of the well bore of the deemed draining
       Adjacent Well. Construed in this way, the Compensatory Royalty provisions do not
       constitute an unenforceable penalty.

This ruling is the subject of Bell’s appeal.

                                               Discussion

Standards of review

       The interpretation of an unambiguous contract (including a mineral lease) is reviewed de

novo. Anadarko Petro. Corp. v. Thompson, 94 S.W.3d 550, 554 (Tex. 2002); Browning Oil Co. v.

Luecke, 38 S.W.3d 625, 640 (Tex. App.—Austin 2000, pet. denied) (oil and gas lease is a contract

and is interpreted as one). That review is guided by well-established principles of contract

construction. Primary among these is the task of the reviewing court to “ascertain the true

intentions of the parties as expressed in the writing itself.” Murphy Explor. & Prod. Co.—USA v.

Adams, 560 S.W.3d 105, 108 (Tex. 2018). Thus, the starting point for contract construction is

necessarily its express language. Id. Even so, a court may “consult the facts and circumstances

surrounding a negotiated contract’s execution to aid the interpretation of its language.” URI, Inc.

v. Kleberg Cnty, 543 S.W.3d 755, 757 (Tex. 2018). But this principle is not without limitation:

       [S]urrounding facts and circumstances cannot be employed to make the language
       say what it unambiguously does not say or to show that the parties probably meant,
       or could have meant, something other than what their agreement stated. In other
       words, extrinsic evidence may only be used to aid the understanding of an
       unambiguous contract’s language, not change it or create ambiguity.

Id. (internal quotation marks and footnotes omitted).




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                                                                                       04-18-00129-CV


        Finally, courts “construe contracts from a utilitarian standpoint bearing in mind the

particular business activity sought to be served and will avoid when possible and proper a

construction which is unreasonable, inequitable, and oppressive.” Frost Nat’l Bank v. L&F

Distribs., Ltd., 165 S.W.3d 310, 312 (Tex. 2005) (internal quotation marks omitted). But this

principle, too, may not be used to rewrite the parties’ agreement: “[P]arties make their own

contracts, and it is not within the province of this court to vary their terms in order to protect them

from the consequences of their own oversights and failures . . . .” Springer Ranch, Ltd. v. Jones,

421 S.W.3d 273, 280 (Tex. App.—San Antonio 2013, no pet.) (quoting Provident Fire Ins. Co. v.

Ashy, 139 Tex. 334, 162 S.W.2d 684, 687 (1942)); see Yzaguirre v. KCS Res., Inc., 53 S.W.3d

368, 374 (Tex. 2001) (“We will not now rewrite this lease’s plain terms to give the Royalty Owners

the benefit of a bargain they never made.”).

Distinctions between vertical and horizontal wells

        The disputes in this case arise primarily because of practical differences in the ways that

vertical and horizontal oil and gas wells are drilled and function. A brief review of those

differences is, therefore, instructive.

        As explained by the supreme court in Murphy, vertical wells “effectively drain a

surrounding area exhibiting high natural porosity and permeability.” 560 S.W.3d at 110 (brackets

omitted). Horizontal drilling, on the other hand, permits extraction of oil and gas “directly from

the less permeable source rock.” Id. at 111. “The locations of both the vertical portion of a

horizontal well and the nonperforated portions of the horizontal wellbore are essentially irrelevant

for production purposes. Rather, the perforated portions of the horizontal wellbore are the points

at which oil and gas is drained and produced from the surrounding rock.” Id. (footnote omitted).




                                                 -6-
                                                                                      04-18-00129-CV


       This court has also noted the practical differences between vertical and horizontal wells:

       Production from a well, whether horizontal or vertical, is not obtained from the
       entire length of the well, but from the part of the well that pierces and drains the
       reservoir in which the hydrocarbons reside. A vertical well may produce
       hydrocarbons from different formations within its vertical line. A horizontal well
       only produces hydrocarbons from the part of the well that lies within the
       hydrocarbon-bearing reservoir, or “correlative interval.” Along the horizontal
       displacement are takepoints through which hydrocarbons flow into the well.

Springer Ranch, 421 S.W.3d at 285.

       Thus, the subsurface wellbore of a horizontal well may span several tracts of land but does

not necessarily actually extract oil or gas from each of those tracts. See id. at 285 (“it is not the

whole length of the well from which production is obtained”).

Paragraph 18

       Both of the issues before this court hinge on the construction of Paragraph 18 of the Leases.

Chesapeake contends that the MDL court erred in construing its liability under that paragraph; Bell

contends that the MDL court erred in construing the method for calculating Compensatory Royalty

under that paragraph. The starting point of our analysis, then, must be a close inspection of the

language of Paragraph 18.

       Paragraph 18 begins by identifying as an “Adjacent Well” a well that is (1) “producing Oil

or Gas in Paying Quantities,” (2) “drilled and completed after the date of this Lease,” (3) “on land

under which Lessor does not own the quantity of minerals or royalty as under the lands covered

by this Lease,” and (4) either draining or deemed to be draining the Leased Premises. A well is

deemed to be draining the Leased Premises if it is located within defined distances (“Trigger

Distances”) from the Leased Premises. If the Adjacent Well is drilled vertically, the Trigger

Distance is “measured from the surface location or bottom hole location of the Adjacent Well,

whichever is closer.” If the Adjacent Well is drilled horizontally, the Trigger Distance is “measured




                                                -7-
                                                                                                   04-18-00129-CV


from the surface location or the subsurface path of a horizontal drainbore, from its point of entry

into the productive horizon to its terminus, whichever is closer.”

         At this point, the language of the Bell Lease and the Ward Lease differ somewhat. Under

the Bell Lease, Chesapeake “agrees [1] to drill such offset wells which is [sic] reasonably designed

to protect the Leased Premises from drainage, or at the option of Lessee, shall [2] pay to Lessor

the Compensatory Royalties set forth below, or [3] execute and deliver to Lessor a release in

recordable form releasing acreage [in a sufficient amount] to drill an offset well to the formation

of such Adjacent Well.” If Chesapeake does not either commence drilling of an offset well or

release sufficient acreage within ninety days of the date of first production of the Adjacent Well,

it is obligated to pay the Compensatory Royalty.

         Under the Ward Lease, within 180 days from the date production commences from the

Adjacent Well, Chesapeake “shall . . . [1] Commence the Actual Drilling Operations for the

Drilling of an offset well on the Leased Premises and diligently pursue such Operations to the

horizon in which such Adjacent Well is producing, or at the option of Lessee, shall [2] pay to

Lessor the Compensatory Royalties set forth below, or [3] execute and deliver to Lessor a release

in recordable form surrendering acreage in an amount equivalent to the Well Tract of the Adjacent

Well.”

         Thus, in broad terms, Paragraph 18 of each Lease provides Chesapeake with three

alternative courses of action once an Adjacent Well begins production: (1) drill an offset well, (2)

release sufficient acreage, or (3) pay Compensatory Royalty. 6 Chesapeake contends that these




6
  The Bell Lease excuses Chesapeake from these obligations if it has previously “completed a well producing from
the same producing horizon as such Adjacent Well and at an offset location to which such Adjacent Well is completed
and producing.” The Ward Lease contains a similar provision excusing Chesapeake if it has previously “drilled a well
at an offset location to such Adjacent Well, which is completed, and producing.” These provisions are not at issue in
this appeal.


                                                        -8-
                                                                                      04-18-00129-CV


obligations operate only within the confines of the reasonably prudent operator standard. In other

words, Chesapeake need not perform any obligation under Paragraph 18 unless an Adjacent Well

is substantially draining the Leased Premises and a reasonably prudent operator would drill an

offset well to protect against that drainage with a reasonable expectation of profit from such a well.

See Amoco Prod. Co. v. Alexander, 622 S.W.2d 563, 568 (Tex. 1981). Bell contends, and the MDL

court agreed, that the Paragraph 18 obligations apply when an Adjacent Well is deemed to be

draining the Leased Premises, without regard to the reasonably prudent operator standard.

        As noted, one of Chesapeake’s Paragraph 18 options is to pay Compensatory Royalty,

which both Leases define as “an amount equal to the Royalty Share of Gross Proceeds of

production from the Adjacent Well.” Bell contends that this means that Compensatory Royalty is

calculated based on production from the entirety of a given Adjacent Well. Chesapeake contends,

and the MDL court agreed, that, in the context of a horizontal Adjacent Well, Compensatory

Royalty is calculated based on production only from those take points that fall within the Leases’

Trigger Distances. Thus, Compensatory Royalty from a horizontal well whose take points do not

all fall within the Trigger Distances is only a percentage or fraction of the production from the well

as a whole.

        Calculation of Compensatory Royalty is the subject of the primary appeal; liability is the

subject of the cross-appeal. Because liability logically precedes compensation, we will address the

cross-appeal first.

Liability under Paragraph 18

        Chesapeake contends that its obligations under Paragraph 18 are qualified by the

reasonably prudent operator standard. Under that standard, an operator need not drill an offset well

to protect the leased premises from drainage unless there is proof “(1) of substantial drainage of

the lessor’s land, and (2) that a reasonably prudent operator would have acted to prevent substantial


                                                 -9-
                                                                                                      04-18-00129-CV


drainage from the lessor’s land.” Amoco, 622 S.W.2d at 568. The second element is construed to

excuse an operator from drilling an offset well if there is no reasonable expectation of profit. See

HECI Expl. Co. v. Neel, 982 S.W.2d 881, 889 (Tex. 1998); Amoco, 622 S.W.2d at 568.

         Chesapeake contends that this reasonably prudent operator standard is expressly

incorporated into the Leases, although by different terms. 7 We will therefore examine the specific

language of each Lease in turn.

         The Ward Lease

         Paragraph 17 of the Ward Lease states, “Lessee also hereby expressly covenants and agrees

to diligently and fully explore, develop, and protect the Leased Premises as a reasonably prudent

operator.” Chesapeake contends that this provision imposes the reasonably prudent operator

standard on every other provision in the Ward Lease, including the offset obligations in Paragraph

18. Ward contends that the more specific offset obligations in Paragraph 18 supersede the general

covenant contained in Paragraph 17. We look first to the express language of Paragraph 18, and

then address the application of Paragraph 17 in light of that express language.

         Paragraph 18 of the Ward Lease states that, once a well is deemed to be draining the Leased

Premises (i.e., once a well is drilled within the Lease’s Trigger Distances and begins production),

Chesapeake

         shall within one hundred eighty (180) days after commencement of production from
         such Adjacent Well, Commence the Actual Drilling Operations for the Drilling of
         an offset well on the Leased Premises and diligently pursue such Operations to the
         horizon in which such Adjacent Well is producing . . . .




7
  Chesapeake clearly states in its briefing that it is not relying on any implied covenant to incorporate the reasonably
prudent operator standard into the Leases. We will, therefore, analyze this issue only in terms of the Leases’ express
language. See Magnolia Petro. Co. v. Page, 141 S.W.2d 691, 693 (Tex. Civ. App.—San Antonio 1940, writ ref’d)
(“when expressed covenants appear in the lease, implied covenants disappear”); see also Foster v. Atl. Ref. Co., 329
F.2d 485, 491 (5th Cir. 1964) (express agreement supersedes and controls over implied covenant to protect against
drainage).


                                                         - 10 -
                                                                                    04-18-00129-CV


       This language is clear, direct, and mandatory. See Perryman v. Spartan Tex. Six Capital

Partners, Ltd., 546 S.W.3d 110, 131 (Tex. 2018) (“By its plain and common meaning, ‘shall’

denotes mandatory action.”). Ward is not required to demonstrate anything other than the existence

of an Adjacent Well within the Trigger Distances that has begun production. Once that is

established, Chesapeake is required to drill unless it chooses one of two specifically-stated

alternatives: “or at the option of Lessee, shall [1] pay to Lessor the Compensatory Royalties set

forth below, or [2] execute and deliver to Lessor a release in recordable form surrendering acreage

in an amount equivalent to the Well Tract of the Adjacent Well.” (Emphasis added.) These

alternatives are also clear, direct, and mandatory, and do not require any showing by Ward other

than the existence of, and production by, an Adjacent Well.

       Paragraph 18 of the Ward Lease thus contains one condition giving rise to three choices:

       Condition: a producing well is drilled within the Trigger Distances.
       Choices:   drill an offset well, pay Compensatory Royalty, or release acreage.

Chesapeake seeks to impose two additional conditions and to grant itself an additional choice:

       Conditions: a producing well is drilled within the Trigger Distances and is actually
                   substantially draining the Leased Premises, and drilling an offset well would
                   reasonably be expected to return a profit.
       Choices:    drill an offset well, pay Compensatory Royalty, release acreage, or do
                   nothing.

       Chesapeake’s construction contradicts the express language of the Ward Lease, particularly

the language concerning deemed drainage. If Chesapeake has no obligation to drill, pay, or release

acreage unless an Adjacent Well is actually substantially draining the Leased Premises, then the

“deemed draining” language has no meaning. But well-settled rules of construction require that

we give every term of a mineral lease meaning and effect. See Anadarko, 94 S.W.3d at 554

(presume parties intend every clause to have effect). The express “deemed draining” term therefore

precludes imposing on Ward a requirement to prove actual substantial drainage.



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                                                                                       04-18-00129-CV


       The language of Paragraph 18 of the Ward Lease—both what is included and what is not—

distinguishes that lease from those at issue in the cases on which Chesapeake relies. For example,

the lease at issue in Mzyk v. Murphy Exploration & Prod. Co.—USA, No. 04-15-00677-CV, 2017

WL 2797479 (Tex. App.—San Antonio June 28, 2017, no pet.) (mem. op.), contained a “drill, pay,

or release” clause akin to Paragraph 18. But that clause also provided that “Lessee agrees to drill

such offset well or wells on said lands (or attempt to complete for production any existing offset

well or wells drilled by Lessee on said lands) as a reasonably prudent operator would drill under

the same or similar circumstances . . . .” Id. at *1 (emphasis added).

       This court, in Mzyk, held that the language “to drill such offset well or wells . . . as a

reasonably prudent operator would drill under the same or similar circumstances” expressly

incorporated the reasonably prudent operator standard into the lease’s offset provision. Id. at *3.

It also found it significant that the offset clause “contains no language suggesting the parties agreed

to a presumption of actual or substantial drainage.” Id. at *4. In contrast, Paragraph 18 of the Ward

Lease does contain language establishing that the parties agreed to a presumption of actual

drainage and does not contain language expressly incorporating the reasonably prudent operator

standard.

       Because of these significant differences in express lease terms, Mzyk is of no assistance in

construing Paragraph 18 of the Ward Lease. The same is true of Menking v. Tar Heels Energy

Corp., 621 S.W.2d 447 (Tex. Civ. App.—Corpus Christi 1981, no writ), and Good v. TXO Prod.

Corp., 763 S.W.2d 59 (Tex. App.—Amarillo 1988, writ denied), on which Chesapeake also relies.

The offset provisions in each of those cases stated that, if a well was drilled on adjacent property

“and [was] draining the leased premises,” the lessee agreed “to drill such offset wells as a

reasonably prudent operator would drill under the same or similar circumstances.” Menking, 621




                                                 - 12 -
                                                                                                    04-18-00129-CV


S.W.2d at 448 (emphasis added); Good, 763 S.W.2d at 59-60 (same). Menking and Good are thus

distinguishable from the case before us for the same reasons as is Mzyk. 8

         If Mzyk, Menking, and Good have any bearing on this case, it is to illustrate how parties

may easily incorporate the reasonably prudent operator standard into the offset clause of a mineral

lease, if that is what they intend. The absence in Paragraph 18 of the Ward Lease of language like

that included in the Mzyk, Menking, and Good leases reinforces our conclusion that Paragraph 18

does not incorporate the reasonably prudent operator standard.

         We note that Chesapeake also relies on Good for the proposition that lease language

triggering an offset obligation when a neighboring well is “draining” the leased premises does not

excuse the requirement that the lessor prove “substantial drainage.” See Good, 763 S.W.2d at 61.

Chesapeake argues that, similarly, the term “deemed draining” is not the same as “deemed

substantially draining,” and does not excuse Ward from having to prove actual substantial

drainage. Chesapeake’s argument puts the cart before the horse. Proof of substantial drainage was

required in Good because “the parties expressly adopted the reasonably prudent operator

standard.” Id. But whether the parties incorporated the reasonably prudent operator standard into

Paragraph 18 of the Ward Lease is the issue here. If it does not, “substantial” drainage from an

Adjacent Well, deemed or actual, is immaterial. Indeed, using the phrase “deemed substantially

draining” would indicate an intent to incorporate that standard because, otherwise, the word

“substantially” would have no import. The fact that the parties did not include the word

“substantially” reinforces the conclusion that they did not intend to incorporate the reasonably

prudent operator standard into Paragraph 18.




8
 We also note that it was not contested in Menking that the reasonably prudent operator standard applied. See Menking,
621 S.W.2d at 448-49.


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                                                                                            04-18-00129-CV


         Chesapeake next relies on Bryan v. Sinclair Oil & Gas Co., 1 S.W.2d 917 (Tex. Civ.

App.—Galveston 1927, no writ), and Tex. Pacific Coal & Oil Co. v. Barker, 117 Tex. 418, 6

S.W.2d 1031 (1928). These case are also distinguishable based on the language of the leases at

issue.

         The lease in Bryan provided that, if a well was drilled on adjoining land within a specified

distance, the lessee “shall proceed at once to faithfully and diligently protect by development” the

leased premises. 1 S.W.2d at 918. The court held that this clause did not impose on the lessee a

greater burden than an ordinarily prudent operator because there was “no specific agreement nor

requirement to drill vel non. 9” Id. at 919. Whether to drill an offset well was specifically qualified

by the phrase “faithfully and diligently,” a phrase akin to “reasonably prudent.” No such qualifying

phrase appears in Paragraph 18.

         The lease in Barker required the operator to “give due protection to said merged tracts of

land against all offset wells drilled on adjacent property near enough to require an offset on these

merged tracts.” 6 S.W.2d at 424. The court recognized this language as imposing an express

obligation to protect against drainage, but noted that the lease was “silent as to how such protection

was to be given.” Id. at 431. It was because of this silence that the court “of necessity tested the

lessee’s performance by the standards of reasonable time and reasonable diligence.” Id. at 432.

The Ward Lease, in contrast, is not silent as to how Chesapeake is to protect the Leased Premises

against drainage. It explicitly requires Chesapeake to drill an offset well, within a specified period

of time and to a defined depth, when a well is drilled on adjacent land within specifically defined

Trigger Distances. Barker is simply inapposite.




9
  “Vel non” is a Latin phrase which simply means “or not.” Vel non, Merriam-Webster Online Legal Dictionary,
https://www.merriam-webster.com/legal/vel%20non.


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        Paragraph 18 of the Ward Lease is similar to paragraph 6 of the lease at issue in Middle

States Petroleum Corp. v. Messenger, 368 S.W.2d 645 (Tex. Civ. App.—Dallas 1963, writ ref’d

n.r.e.). That paragraph stated that “Assignee will [within a specified period of time after receiving

notice of a producing well] begin actual operations for the drilling of a well to protect said offset,

or . . . reassign that portion of the lease that is due an offset . . . .” Id. at 647-48. The court there

held that this language “was a requirement to drill vel non,” that is, “an express agreement to drill

under certain circumstances.” Id. at 654. For that reason, the court concluded that the “reasonable

and prudent operator test” did not apply. Id. (internal quotation marks omitted). The same is true

here of Paragraph 18—it contains an express agreement to drill under certain circumstances which

precludes application of the reasonably prudent operator standard.

        Having determined that Paragraph 18 does not incorporate the reasonably prudent operator

standard and, in fact, negates the “substantial drainage” element of that standard, we now address

whether that standard nonetheless applies by virtue of Paragraph 17.

        Chesapeake urges that the Ward Lease must be construed to incorporate the reasonably

prudent operator standard into Paragraph 18 or else the Paragraph 17 agreement to “protect the

Leased Premises as a reasonably prudent operator” would have no meaning. See Anadarko, 94

S.W.3d at 554 (presume parties intend each lease clause to have effect). In effect, Chesapeake

argues that protecting the leased premises can only refer to protecting against drainage, i.e., the

duty to drill offset wells. It urges that, because Paragraph 17 limits the duty to protect to what a

reasonably prudent operator would do, then any duty to drill offset wells under Paragraph 18 must

be limited in the same way. The flaw in this argument is that the duty to protect against drainage




                                                  - 15 -
                                                                                                  04-18-00129-CV


is only one part of the broader duty to protect the leased premises. 10 Amoco, 622 S.W.2d at 568

(“The implied covenant to protect against drainage is part of the broad implied covenant to protect

the leasehold.” (emphasis added); see HECI, 982 S.W.2d at 889 (“Broadly categorized, we have

recognized implied covenants to . . . protect the leasehold, which includes protection from local

and field-wide drainage.” (emphasis added)). Thus, the agreement to protect the Leased Premises

as a reasonably prudent operator has meaning and effect even if it does not apply specifically to

Chesapeake’s offset obligations under Paragraph 18.

        Ward argues that the broad covenant to protect stated in Paragraph 17 is superseded by the

express terms concerning drainage stated in Paragraph 18 because specific contract terms control

over general terms. See Wells Fargo Bank, Minnesota, N.A. v. N. Cent. Plaza I, L.L.P., 194 S.W.3d

723, 726 (Tex. App.—Dallas 2006, pet. denied) (citing Forbau v. Aetna Life Ins. Co., 876 S.W.2d

132, 133-34 (Tex. 1994)). Chesapeake contends that this argument renders Paragraph 17

meaningless because every other provision in the Lease is necessarily more specific than the

general invocation of the broad covenants stated in Paragraph 17. But the determining factor is not

simply that Paragraph 18 is more specific than Paragraph 17. It is that the specific terms of

Paragraph 18 are incompatible with the general terms of Paragraph 17. It is because of this

incompatibility that the specific duties stated in Paragraph 18 control over the general covenants

stated in Paragraph 17.

        Chesapeake acknowledges that there may be “irreconcilable tension” between the “deemed

draining” language in Paragraph 18 and the reasonably prudent operator standard requirement of

substantial drainage. As noted above, the incompatibility between the two is such that the “deemed



10
  Chesapeake repeatedly refers to Paragraph 17 as providing that the operator shall protect the lease from drainage.
But the word “drainage” does not appear in that paragraph. Rather, the stated duty is simply “to protect the Leased
Premises.”


                                                       - 16 -
                                                                                       04-18-00129-CV


draining” language precludes incorporating the “substantial drainage” requirement into Paragraph

18. Chesapeake asserts that we should nevertheless incorporate the second element of the

reasonably prudent operator standard, which would require Ward to prove that drilling an offset

well would yield a reasonable expectation of profit. See HECI, 982 S.W.2d at 889; Amoco, 622

S.W.2d at 568.

       The elements of the reasonably prudent operator standard are intertwined and cannot be

divorced from one another. The first element requires proof of substantial drainage; the second

requires proof that “a reasonably prudent operator would have acted to prevent that drainage.”

Murphy, 560 S.W.3d at 109 n.3; see Amoco, 622 S.W.2d at 568. The second element clearly refers

back to the first. Proof that a reasonably prudent operator would have acted to prevent “that

drainage” necessarily requires proof of the extent of “that drainage.” In other words, a lessor would

be required to prove that a sufficient amount of oil could be recovered from an offset well to cover

the costs of such well and yield a reasonable expectation of profit. But, because drainage here is

deemed, Ward is not required even to prove its actual existence. It would defy logic to nevertheless

require him to prove there is actually a sufficient amount of drainage/potentially recoverable oil or

gas to make drilling an offset well profitable.

       Chesapeake also argues that failing to require Ward to prove that drilling an offset well

would be economically beneficial leads to the absurd result of requiring it to drill offset wells that

are unnecessary to protect against actual, substantial drainage. But Chesapeake agreed to the

“deemed draining” term that negates the requirement of actual, substantial drainage, and that

logically negates the requirement of proving economic benefit. We will not read the “deemed

draining” term out of the agreement because Chesapeake now finds it objectionable. See Springer

Ranch, 421 S.W.3d at 280 (“[P]arties make their own contracts, and it is not within the province




                                                  - 17 -
                                                                                   04-18-00129-CV


of this court to vary their terms in order to protect them from the consequences of their own

oversights and failures.”)

       The express terms of Paragraph 18 evidence the parties’ intent that the reasonably prudent

operator standard does not apply to Chesapeake’s obligation to drill an offset well, pay

Compensatory Royalty, or release acreage. While Paragraph 17 may operate to incorporate that

standard into other lease provisions that do not evidence a similar intent, it cannot operate to

overcome the intent of Paragraph 18. We conclude that the reasonably prudent operator standard

does not apply to Paragraph 18 of the Ward Lease.

       The Bell Lease

       The Bell Lease does not contain a provision like Paragraph 17 of the Ward Lease. Instead,

Chesapeake argues that the Bell Lease expressly incorporates the reasonably prudent operator

standard in Paragraph 18 itself. Chesapeake relies on the following language: “Lessee agrees to

drill such offset wells which is [sic] reasonably designed to protect the Leased Premises from

drainage.” Bell contends that this language relates only to how an offset well must be designed,

not whether one must be drilled.

       Bell urges that any uncertainty over the meaning of the phrase “reasonably designed to

protect from drainage” is resolved by evidence of the parties’ negotiations. Redline drafts of the

Bell Lease demonstrate that one iteration of Paragraph 18 contained the language, “Lessee agrees

to drill such offset wells as a reasonably prudent operator would drill under the same or similar

circumstances which is reasonably designed to protect the leased premises from drainage.”

(emphasis added) The italicized language was later stricken, thus deleting any reference to the

reasonably prudent operator standard. Chesapeake asserts that the MDL court erred by considering

this extrinsic evidence and that this court should refuse to consider it.




                                                - 18 -
                                                                                       04-18-00129-CV


       “The parol evidence rule does not . . . prohibit courts from considering extrinsic evidence

of the facts and circumstances surrounding the contract’s execution as an aid in the construction

of the contract’s language, but the evidence may only give the words of a contract a meaning

consistent with that to which they are reasonably susceptible . . . .” URI, Inc., 543 S.W.3d at 765

(internal quotation marks omitted). “Understanding the context in which an agreement was made

is essential in determining the parties’ intent as expressed in the agreement, but it is the parties’

expressed intent that the court must determine.” Anglo-Dutch Petro. Int’l, Inc. v. Greenberg Peden,

P.C., 352 S.W.3d 445, 451 (Tex. 2011) (emphasis in original).

       This court employed these principles to consider evidence of redline drafts in PNP

Petroleum I, LP v. Taylor, 438 S.W.3d 723 (Tex. App.—San Antonio 2014, pet. denied). One draft

of the lease at issue in that case contained the following language in a shut-in royalty clause: “If,

at the expiration of the primary term—or at any time thereafter, there is located on the leased

premises a well or wells capable of producing gas in paying quantities . . . Lessee may pay [to

extend the lease term].” Id. at 736. “Capable of” was stricken in a later draft and replaced by the

word “not.” The final executed lease thus conditioned payment of shut-in royalty on there being

“located on the leased premises a well or wells not producing oil/gas in paying quantities . . . .” Id.

       The court acknowledged that the generally accepted meaning in the oil and gas industry of

the term “shut-in royalty” requires the existence of a well capable of producing in paying quantities

at the time it is shut-in, even if the shut-in royalty clause does not mention capacity for paying

production. Id. (citing Hydrocarbon Mgmt., Inc. v. Tracker Exp., Inc., 861 S.W.2d 427, 432-33

(Tex. App.—Amarillo 1993, no writ)). It also acknowledged that this general legal principle would

appear to apply to the construction of the lease at issue. Id. However, the court concluded that the

parties did not intend for that principle to apply because, “[w]hen the parties’ negotiations as

reflected in the lease drafts are considered, . . . an express reference to ‘capable of’ producing in


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                                                                                                     04-18-00129-CV


paying quantities was stricken . . . .” Id. “Quite simply, the parties could not have intended for the

law to engraft into their agreement the very language they removed.” Id. at 737.

         The Bell Lease presents the same circumstance as that considered by the court in PNP

Petroleum. Chesapeake would have us engraft into that lease the very language that the parties

removed—the reasonably prudent operator standard. But, as in PNP Petroleum, the fact that the

parties affirmatively removed that standard evidences their intent that it not apply to the offset well

obligations. We will not rewrite the parties’ agreement to reinsert that standard as that would be

contrary to the parties’ expressed intent. 11

         Given that the parties removed the reasonably prudent operator standard from Paragraph

18, we cannot read “reasonably designed to protect from drainage” as imposing the same

requirements as the removed standard. In this respect, we reject Chesapeake’s contention that the

original version, which contained both “reasonably prudent operator” and “reasonably designed to

protect from drainage” language, was simply redundant. If the two original phrases did mean the

same thing, one would expect that the parties would have chosen to retain the well-established and

time-tested articulation of that meaning—“reasonably prudent operator”—rather than one that

apparently has not been construed by any Texas appellate court. The intentional deletion of the

reasonably prudent operator language must be given effect.

         Finally, considering the redline drafts and giving effect to the parties’ intention as

evidenced by deletion of the reasonably prudent operator language does not vary or contradict the

language the parties retained. “Reasonably designed to protect from drainage,” according to its

plain language, refers to the design of an offset well, not to whether Chesapeake is required to drill

one. This construction gives the phrase practical meaning, especially in light of the supreme court’s


11
  Chesapeake concedes that PNP supports, if not requires, consideration of the redline drafts in this case. It asserts,
though, that PNP Petroleum was wrongly decided and urges this court to overrule it. We decline that invitation.


                                                        - 20 -
                                                                                        04-18-00129-CV


recent opinion in Murphy, as such design would encompass not only how, but where an offset well

should be drilled.

       The lease in Murphy required the operator to drill an offset well if a well were drilled on

adjacent land within a specified distance from the leased premises. 560 S.W.3d at 107. The lease

required that such an offset well be drilled “to a depth adequate to test the same formation from

which the well or wells are producing from [sic] on the adjacent acreage.” Id. It did not otherwise

specify where on the leased premises the offset well must be drilled. Id. In addition, the offset

provision did not incorporate the reasonably prudent operator standard and did not mention

drainage. Id.

       The supreme court rejected the lessor’s contention that the offset clause necessarily was

intended to protect against drainage and thus required that the offset well be drilled in proximity

to the draining well. Id. at 112. The court determined that, in the context of vertical drilling, it may

be reasonable to interpret “offset well” as meaning one that protects against drainage. Id. But, in

the context of horizontal drilling, it is reasonable to interpret “offset well” as meaning one that

“serves to counterbalance or to compensate for a triggering well on the adjacent property.” Id. at

113 (internal quotation marks omitted). The court thus concluded that the offset clause in the lease

before it did not impose any proximity requirement. Id. at 113-14.

       Unlike the lease in Murphy, the Bell Lease contains language demonstrating that the parties

intended for the offset clause to operate in the context of drainage, whether actual or deemed. The

requirement that Chesapeake drill “such offset wells which is [sic] reasonably designed to protect

the Leased Premises from drainage” indicates an intent that the offset well be drilled in proximity




                                                 - 21 -
                                                                                                  04-18-00129-CV


to the Adjacent Well. 12 Thus, the phrase “reasonably designed to protect from drainage” is given

meaning and not rendered mere surplusage.

        Conclusion on liability

        For the reasons stated above, we hold that the reasonably prudent operator standard does

not apply to Paragraph 18 of either the Ward Lease or the Bell Lease. The MDL court therefore

did not err by denying Chesapeake’s motion for summary judgment seeking to incorporate that

standard. That portion of the MDL court’s order is affirmed.

        We now address the compensatory royalty issue raised in the primary appeal.

Calculation of Compensatory Royalty

        The express language of the Leases defines Compensatory Royalty as “an amount equal to

the Royalty Share of Gross Proceeds of production from the Adjacent Well.” The term “Royalty

Share” is defined in the Leases as specified percentages (e.g., 22% of Gross Proceeds or 22% of

Fair Market Value). The meaning of Royalty Share is not in dispute.

        The term “Gross Proceeds” is defined in the Leases as “the total proceeds received by

Lessee for any sale of [Oil or condensate/Gas].” Bell argues that Chesapeake’s construction of the

Leases contradicts the meaning of Gross Proceeds as “total” proceeds. Chesapeake, however,

agrees that Gross Proceeds means “all” or “total” proceeds. The question is, total proceeds from

what? The real point of contention is whether Gross Proceeds are from production from the entirety

of a horizontal well, any part of which falls within the Trigger Distances, or production attributable

only to those perforations (take points) that are within those Trigger Distances. Here, again, the

answer lies in the language of the Leases.




12
  We do not purport to decide how Murphy applies to the lease provisions concerning previously-drilled wells “at an
offset location.” That issue is beyond the scope of this appeal.


                                                      - 22 -
                                                                                      04-18-00129-CV


       The measure of Compensatory Royalty as stated in the Leases is “the Royalty Share of

Gross Proceeds of production from the Adjacent Well.” (emphasis added) An “Adjacent Well” is

one “producing Oil or Gas in Paying Quantities . . . drilled and completed after the date of this

Lease” and either draining the Leased Premises or deemed to be draining that property because

“said Adjacent Well is located within” specified Trigger Distances from the Leased Premises.

Significantly, the parties expressly provided for how to determine whether a horizontal Adjacent

Well is within those Trigger Distances (i.e., is deemed to be draining the Leased Premises): “in

the case of a Horizontal Well distance will be measured from the surface location or the subsurface

path of a horizontal drainbore, from its point of entry into the productive horizon to its terminus,

whichever is closer.” (emphasis added)

       Given this express provision, Chesapeake’s Paragraph 18 obligations are triggered if a

horizontal Adjacent Well is drilled such that the surface location of that well is within the Leases’

trigger distances, regardless of whether that well thereafter runs parallel or perpendicular to, or

toward or away from, the Leased Premises. In fact, measuring the location of a horizontal Adjacent

Well by its surface location occurs only if that surface location is closer to the Leased Premises

than is the horizontal drainbore. In such a case, the drainbore necessarily runs away from the

Leased Premises.

       The surface location of a horizontal well is not the actual point of production. See Murphy,

560 S.W.3d at 111 (perforated portions of horizontal wellbore are where minerals are drained and

produced from rock); Springer Ranch, 421 S.W.3d at 285 (take points are where hydrocarbons

flow into horizontal well). Even so, the parties specifically agreed that a horizontal well is deemed

to be draining the Leased Premises (and triggers Paragraph 18 obligations) even if only its surface

location is within the Trigger Distances. Chesapeake’s insistence that only the location of

horizontal well take points is relevant to its Paragraph 18 obligations impermissibly negates this


                                                - 23 -
                                                                                                       04-18-00129-CV


express contract provision. See Murphy, 560 S.W.3d at 108 (courts must give effect to all contract

provisions so none are rendered meaningless).

         Similarly, the alternate measure point of a horizontal well—“the subsurface path of a

horizontal drainbore, from its point of entry into the productive horizon to its terminus”—does not

depend on, or even account for, where actual production takes place. While the parties could easily

have provided for measuring the location of a horizontal Adjacent Well from take points along the

horizontal drainbore, they did not. Instead, they employed language describing the entire length of

the drainbore, not discrete take points.

         Chesapeake’s argument that only take points are relevant is, in effect, an argument that

take points within the Leases’ Trigger Distances and take points outside of those distances should

be treated as separate wells for purposes of applying Paragraph 18. In fact, Chesapeake states in

its brief that “[e]ach take point essentially functions as a separate underground well.” Chesapeake

also states that the central aspect of its position on interpreting Compensatory Royalty is that

production from a horizontal well is not from the entire length of the well, but only from take

points where the horizontal wellbore is perforated. We look instead to the language contained the

Lease. 13

         As established by the plain language of the Leases, and as recognized by Chesapeake’s

own expert, “[t]he trigger distances in the offset clauses of the Plaintiff’s leases . . . do not

distinguish between horizontal wells and vertical wells, and do not distinguish between wells

drilled perpendicular to or parallel to the lease or unit line.” Thus, any interpretation of the offset

clauses must apply equally to horizontal and vertical wells.



13
   The Lease language states that the location of a horizontal Adjacent Well is determined by reference to the surface
location of the well or the entirety of the horizontal drainbore, “from its point of entry into the productive horizon to
its terminus.”


                                                         - 24 -
                                                                                                  04-18-00129-CV


        The Leases clearly speak of “Adjacent Well” in the singular (e.g., “a well producing Oil or

Gas”; “deemed draining if the Adjacent Well”; “gross proceeds from the Adjacent Well”). There

is no language even implying that a single horizontal well should, or even may, be considered to

be multiple Adjacent Wells, depending on the location of its take points. The Leases plainly

identify horizontal wells in terms of the entirety of those wells (e.g., “from its point of entry into

the productive horizon to its terminus”), not as segmented into “mini-wells” defined by individual

take points. Had the parties intended that a horizontal well be treated as a series of “take point”

wells rather than one integrated whole, they could easily have said so. They did not, and we may

not say so for them. See Tenneco Inc. v Enter. Prods. Co., 925 S.W.2d 640, 646 (Tex. 1996)

(“courts will not rewrite agreements to insert provisions parties could have included”).

        Chesapeake insists that this court must look beyond the language of the Leases and

consider the “realities” of horizontal drilling as surrounding facts and circumstances that inform

the court’s construction of that language. 14 See Murphy, 560 S.W.3d at 110; Springer Ranch, 421

S.W.3d at 279. But the cases on which Chesapeake relies are distinguishable.

        The leases in Murphy, like the Leases in this case, were “drafted with horizontal shale

drilling in mind.” 560 S.W.3d at 110. The difference, though, is that the Murphy leases did not

expressly address the issue presented to the court for construction—whether a required offset well

may be drilled anywhere on the leased premises or whether there was an implied requirement of

proximity to the lease boundary. Id. at 108, 112. It was in the context of answering that question

that the supreme court considered sources outside the four corners of the lease (primarily law

journal articles) concerning how a horizontal well produces minerals and the unlikelihood of

drainage between tracts. See id. at 111-12.


14
  We note that some of these “realities,” such as the direction and extent of hydraulic fractures and the extent of
drainage from take points, are hotly disputed by Bell.


                                                      - 25 -
                                                                                                      04-18-00129-CV


         In the present case, the Leases expressly address the issue presented. Compensatory

Royalty is computed based on “production from the Adjacent Well.” And, in the context of a

horizontal well deemed to be draining the Leased Premises, an Adjacent Well is one whose surface

location or subsurface path “from its point of entry into the productive horizon to its terminus” is

within the Trigger Distances. This language clearly demonstrates that the parties were aware of

the realities of horizontal drilling and made provision for those realities. Chesapeake may not now

assert those “realities” to alter or contradict the unambiguous Lease language. 15 See id. at 109.

Again, the parties could have fashioned a different calculation of Compensatory Royalty to

account for the reality that production occurs only at the take points of a horizontal well. But they

did not, and we will not do so for them. See Tenneco, 925 S.W.2d at 646.

         Springer Ranch is likewise distinguishable based on the language of the agreements at

issue. The contract in Springer Ranch provided that royalties on particular lands “shall be paid to

the owner of the surface estate on which such well or wells are situated . . . .” 421 S.W.3d at 277.

The question presented was whether a horizontal well that spanned multiple properties was situated

on each of those properties or only on the property where the wellhead was located. Id. at 277-79.

This court concluded that, “[i]n light of the contract’s language, physical facts of the mineral and

surface estates, and the applicable case law,” the well was “situated ‘on’ more than one ‘surface

estate.’” Id. at 284.

         The contract in Springer Ranch did not address how to determine where a horizontal well

is situated. It was therefore appropriate for this court to consider “physical facts of the mineral and



15
   Chesapeake introduced these “realities” by way of an expert affidavit explaining the manner in which a horizontal
well produces minerals, the geology of the Eagle Ford Shale, and the unlikelihood of drainage between tracts in the
Eagle Ford shale. These explanations, even from an expert, cannot be employed to alter or contradict the plain meaning
of the express language used in the Leases. See Dynegy Midstream Servs., Ltd. P’ship v. Apache Corp., 294 S.W.3d
164, 170 (Tex. 2009) (“Experts have a proper (if confined) role in litigation, but it is not to supply parol evidence to
vary or contradict the terms of unambiguous contracts.”).


                                                         - 26 -
                                                                                        04-18-00129-CV


surface estates” to aid it in construing what the parties intended by the word “situated.” But, in the

case before us, the parties specifically stated how to determine the location of a horizontal well.

There is no need for this court to go beyond the language of the Leases to construe their meaning.

Further, even if the court were to consider extrinsic facts or circumstances, those facts or

circumstances cannot be used to alter or contradict the actual language of the Leases. See Murphy,

560 S.W.3d at 108-109; Springer Ranch, 421 S.W.3d at 278-79.

       Chesapeake also urges this court to follow the lead of the Austin Court of Appeals in

Luecke and “decline to apply legal principles appropriate to vertical wells that are so blatantly

inappropriate to horizontal wells.” 38 S.W.3d at 647. But Luecke, too, is distinguishable. That case

concerned the rule of capture, actual drainage, and the remedy for improper pooling of a horizontal

well. The parties in Luecke executed a lease “prior to the surge of horizontal drilling and likely did

not contemplate the possibility of horizontal wells.” Id. at 638. The lease thus did not contain any

provisions specific to horizontal wells and the court was left to determine how relevant legal

principles would apply in the absence of such specific provisions. We are not in that position. The

parties in this case both contemplated the drilling of horizontal wells and specified how the Leases

would apply in that context. We are not at liberty to “decline to apply legal principles” that the

parties could have, but did not, exclude in their agreements.

       The gist of Chesapeake’s argument is that calculating Compensatory Royalty according to

the plain language of the Leases is a bad deal. Regardless, that is the deal the parties made and this

court is not permitted to rewrite it under the guise of interpreting it. See Fiess v. State Farm Lloyds,

202 S.W.3d 744, 753 (Tex. 2006) (“[W]here the language is plain and unambiguous, courts must

enforce the contract as made by the parties, and cannot make a new contract for them, nor change

that which they have made under the guise of construction.”). Again, “parties make their own

contracts, and it is not within the province of this court to vary their terms in order to protect them


                                                 - 27 -
                                                                                    04-18-00129-CV


from the consequences of their own oversights and failures.” Springer Ranch, 421 S.W.3d at 280.

This is especially so given that Chesapeake is a sophisticated business player that was represented

by highly competent and able legal counsel who actively negotiated the Lease terms with the

knowledge, and even expectation, that an Adjacent Well would be drilled horizontally. See

Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 180 (Tex. 1997) (recognizing significance

of parties’ business acumen and representation by able counsel in an arm’s-length transaction).

       We conclude that the MDL court erred by altering the method for calculating

Compensatory Royalty specifically stated in the Leases. We hold that, according to that specific

language, Compensatory Royalty is calculated by the Royalty Share of Gross Proceeds of

production from the entirety of an Adjacent Well. Compensatory Royalty is not limited to

production allocable only to take points within the Trigger Distances.

       Chesapeake asserted in the court below that, if Compensatory Royalty is calculated

according to the Lease language, it constitutes an unenforceable penalty. Bell urges this court to

resolve this issue. It would not, however, be appropriate for us to do so.

       The provision for a permissive interlocutory appeal is an exception to the general rule that

only final judgments are appealable and is, therefore, strictly construed. Lakes of Rosehill

Homeowners Ass’n, Inc. v. Jones, 552 S.W.3d 414, 418 (Tex. App.—Houston [14th Dist.] 2018,

no pet.); White Point Minerals, Inc. v. Swantner, 464 S.W.3d 884, 890 (Tex. App.—Corpus Christi

2015, no pet.). The scope of a permissive appeal is limited to consideration of the controlling

question of law identified by the trial court. See TEX. R. CIV. P. 168; White Point Minerals, 464

S.W.3d at 890. “The parties may not add to the trial court’s description of the controlling legal

question.” Lakes of Rosehill, 552 S.W.3d at 418.

       Whether Compensatory Royalty, as determined according to the Leases’ express language,

is an unenforceable penalty is not a controlling question of law identified by the MDL court in


                                                - 28 -
                                                                                      04-18-00129-CV


certifying this permissive interlocutory appeal. Indeed, it does not appear that the MDL court has

rendered a decision on this issue. It is not our function, as a reviewing court, to decide this issue

in the first instance, particularly in the context of a permissive interlocutory appeal. See TEX. R.

APP. P. 33.1 (requiring ruling by trial court to preserve issue for appellate review). We therefore

decline Bell’s invitation to address the unenforceable penalty issue.

       Conclusion on Compensatory Royalty

       For the reasons stated above, Compensatory Royalty must be calculated according to the

express term of the Leases—by reference to production from the entirety of an Adjacent Well,

regardless of whether that well is vertical or horizontal, parallel or perpendicular, running toward

or away from the Leased Premises. The MDL court erred by granting Chesapeake’s motion for

summary judgment redrafting the Compensatory Royalty clause to include only production

allocable and attributable to portions of an Adjacent Well. That portion of the MDL court’s order

is reversed.

                                            Conclusion

       That portion of the MDL court’s order denying Chesapeake’s Deemed Drainage Claims

Motion (First Drainage Motion) is affirmed. That portion of the MDL court’s order granting, in

part, Chesapeake’s Deemed Drainage Damages Motion (Second Drainage Motion) is reversed and

judgment is rendered that Compensatory Royalty shall be measured by an amount equal to the

Royalty Share of Gross Proceeds of production from the entire Adjacent Well.

                                                   Rebeca C. Martinez, Justice




                                                - 29 -
