                                   NO. 07-09-0343-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                SEPTEMBER 6, 2011
                            __________________________

              SOUTH PLAINS LAMESA RAILROAD, LTD. AND LARRY
                             DALE WISENER,
                                               Appellants

                                            v.

                         THE KITTEN FAMILY LIVING TRUST,

                                                      Appellee
                            __________________________

            FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

          NO. 2005-529,345; HONORABLE WILLIAM C. SOWDER, JUDGE
                        ___________________________

                                  Concurring Opinion
                           ___________________________

      I concur in the disposition of this appeal by the majority but for a different reason.


      This court determined, in the first appeal, that the Lease Agreement was "not

fully integrated into the Easement Agreement and the Easement Agreement merely

modifie[d] the Lease Agreement in some respects." South Plains Lamesa Railroad, Ltd.

v. The Kitten Family Living Trust, No. 07-06-0209-CV, 2008 Tex. App. LEXIS 603 at *9

(Tex. App.–Amarillo Jan. 28, 2008, pet. denied) (emphasis added). And, since the

Easement Agreement did not completely supersede the Lease or encompass the entire
agreement between the parties, we found the claim of merger inapplicable. Id. Then

we noted that the inconsistent terms in the two agreements created ambiguities and

remanded the cause for further proceedings.


        At the subsequent trial, the court directed the jury to determine, via the first issue,

whether the “Easement of February 17th, 1998, . . . was to be the controlling agreement

of the parties . . . .”     (Emphasis added).          It answered “yes.”       In being asked that

question, the jury, for all intent and purpose, was given the option to ignore our previous

ruling. That is, it was given the option to assess whether the Easement superseded or

otherwise supplanted the Lease when we already held that it did not. Consequently, the

issue was improper for it should have focused on the resolution of ambiguities between

the two documents, not on whether one document superseded or controlled the other.1


        I also question the majority’s reasoning in issue one to the extent that their

opinion can be read as permitting the litigants to submit novation, merger or some like

doctrine that effectively permits the jury to determine whether the Easement displaced

the Lease in toto. Doing so not only implicitly contradicts what we held in our first

opinion but also contradicts the undisputed conduct of the litigants themselves. Indeed,

by the Trust continuing to pay rent per the Lease and the Railroad accepting it after the

Easement was executed, no one can reasonably deduce that the parties intended for

the latter to entirely supplant the former. Simply put, the actions of the parties resulted

in the creation of two viable documents that are contradictory and, therefore, ambiguous

in various aspects. The duty to help resolve those ambiguities via the derivation of the
        1
          Such ambiguities, for example, could involve the duration of the lease or easement, the need to
pay “rent,” whether rent was payable as long as the easement existed, the number of wells that could be
drilled or maintained, and the like. The parties’ words and conduct once both documents were signed
could be inferred from their intent.

                                                   2
parties‘ intent viz those particular ambiguous provisions fell upon the jury. The latter

was denied opportunity to perform that task given the broad form submission of jury

issue one.


      Finally, it may be that something in our first opinion was inaccurate.

Nonetheless, I opt not to overrule it by implication. All must either live by what we said

until we expressly, overtly conclude that something we said was wrong. To leave the

matter open to conjecture helps no one.




                                          Brian Quinn
                                          Chief Justice




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