                                NO. 07-02-0003-CV

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                     PANEL E

                                  APRIL 30, 2003

                        ______________________________


              BETTY LOU MCCOY GRAYSON, ET AL., APPELLANTS

                                         V.

               CRESCENDO RESOURCES, L.P., ET AL., APPELLEES


                      _________________________________

            FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;

              NO. 10,817; HONORABLE STEVEN R. EMMERT, JUDGE

                       _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1


                                     OPINION


      Appellants Betty Lou McCoy Grayson, Mitzi Leigh Devoll, Marilyn McCoy, Robert

McCoy, Roy D. McCoy, Misti Rel, Leon Red, and Kelton Oil & Gas Co., bring this appeal


      1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
challenging a take-nothing judgment in favor of appellees Crescendo Resources, L.P.,

Crescendo Management, Amoco Production Company, BP Corporation North America,

and Minco Oil & Gas Co. (collectively referred to as Amoco). We affirm the judgment of

the trial court.


       Appellants are lessors in leases covering land in Section 24, Block 4, Camp County

School in Wheeler County. The Amoco parties are lessees in leases covering land in

Section 24 and surrounding sections. Appellants brought suit against Amoco for breach

of implied covenants to protect against drainage and to reasonably develop the leases.


       The sole issue presented for our decision is whether the trial court erred in refusing

to submit a jury question on appellants’ claim for failure to reasonably develop the lease.

The jury found against appellants on their drainage claim resulting in the take-nothing

judgment being appealed.


       Amoco completed its first well, the Reynolds 1-25, in the area on the west edge of

Section 25. The well penetrated the A chert zone of the Upper Morrow formation, but had

only marginal production from that zone. The well was completed to another zone in

August 1997. Based upon information from the 1-25, Amoco drilled a well on Section 24,

which is located to the west of Section 25. This well, the Hall-McCoy 1-24, was completed

in the southeast quarter of that tract in May 1998 and was “fracked” the same month.

Amoco selected this location to obtain production from the A chert zone, and it did so.




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This well had good gas production of approximately 30,000 MCF per month initially, but

production from it declined rapidly.


       Section 23 is just south of Section 24 and Section 20 adjoins Section 23 on the

west. Amoco also held leases on these three sections. In August 1998, Amoco completed

the Fowlston 1-23 well in the northwest quarter of Section 23. This well was drilled at a

location 467 feet from the north boundary and 1,000 feet from the west boundary of the

section. The well bottomed approximately 200 feet closer to the north boundary of Section

23, or about 2050 feet southwest of the 1-24 well. The A chert zone was less than half as

thick at the 1-23 well location, but the formation was more porous. Its initial production

was similar to that of the 1-24. In October 1998, Amoco undertook a fracking operation

on the 1-23 well, which increased its production dramatically to the point that in November

1998, it produced186,000 MCF. Production from the 1-24 well decreased again after

completion of the 1-23 well. Production from the 1-24 well decreased the month after the

“fracking” operation on the 1-23, but returned to its former level the ensuing month.


       Before completion of the 1-23, Amoco spudded a well in the northwest quarter of

Section 24, again seeking production from the A chert zone. This was the 2-24 well, which

was completed in November 1998. The 2-24 passed through a narrow portion of the A

chert, but was not productive from that zone and production was obtained from a lower

zone. Amoco completed a well in the northwest quarter of Section 20, denominated the

Fowlston 1-20, in February 1999.



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      On December 15, 1999, appellants filed suit alleging breach of the covenants to

protect against drainage and to reasonably develop Section 24. The suit was based upon

Amoco’s alleged failure to drill a well in the southwest quarter of Section 24 at a mirror

image location from the 1-23. During the four-day jury trial held in December 2001, the

parties presented expert testimony concerning the location of the A chert, whether there

was drainage from Section 24, and whether a reasonably prudent operator would have

drilled another well in the southwest quarter of Section 24. Although the trial court

submitted jury questions on appellants’ claim for breach of the covenant to protect against

drainage, it refused to submit the following question and instruction requested by

appellants:


      In answering question 1, you are instructed that a “reasonably prudent
      operator” is obligated to develop an oil and gas lease in the manner and with
      the diligence of a reasonably prudent operator under all the surrounding
      facts and circumstances. Such an operator has a duty to seek favorable
      administrative relief. You are instructed to consider that by drilling a well a
      reasonably prudent operator would have knowledge of the risks involved and
      would have a reasonable expectation of encountering a producing zone and
      producing gas in quantities that would bring profit to the operator after
      deducting the costs of drilling, testing, equipping, completing, operating, and
      marketing, together with taxes and royalties.

                             Plaintiffs’ Requested Question 1

       Would a reasonably prudent operator owning only Section 24 leases have
       drilled a well in Section 24 at the mirror image location to the Fowlson Estate
       1-23 well?


       It is well established that a court must submit all properly requested questions,

instructions and definitions raised by the pleadings and supported by some evidence. Tex.


                                             4
R. Civ. P. 277, 278; Triplex Communications v. Riley, 900 S.W.2d 716, 718 (Tex. 1995).

Appellants’ complaint on appeal is predicated on their position that the evidence was

legally sufficient to support a finding on their claim for failure to develop, making the trial

court’s refusal to submit that question reversible error.


       Amoco does not dispute that in a lease such as we are concerned with here, where

the lessee’s obligation to develop is not specifically addressed, the law implies a covenant

to reasonably develop the premises. See Amoco Production Co. v. Alexander, 622 S.W.2d

563, 567 (Tex. 1981). The lessee’s duty under that covenant is to act as a reasonably

prudent operator under the same or similar circumstances. Id. at 567-68. The covenant

to develop is only implicated after production is secured and requires the lessee to act with

reasonable diligence so that the operations result in a profit to both lessor and lessee.

Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684, 693 (1959). The obligation to drill

additional wells depends on the facts of each particular case. Senter v. Shanafelt, 233

S.W.2d 202, 206 (Tex.Civ.App.–Fort Worth 1950, no writ). The covenant requires a

balance between a lessor’s desire for rapid production and the lessee’s desire to keep

production costs down. Clifton, 325 S.W.2d at 693.


       A claim for breach of a covenant to protect against drainage from other wells

requires the lessor to prove substantial drainage and that a reasonable and prudent

operator would have acted to prevent the drainage because the amount of oil or gas to be

recovered by a productive well would cover the cost of drilling the well and create a



                                              5
reasonable expectation of profit. Alexander, 622 S.W.2d at 568. Here, because the jury

found there was no substantial drainage, it did not reach the question whether Amoco

acted as a reasonably prudent operator. Because of this, appellants argue the jury’s

finding on the covenant to protect against drainage did not preclude recovery on their

claim for failure to develop. They also argue the trial evidence showed Amoco failed to

act as a reasonably prudent operator, and this evidence supported both their claims,

requiring submission of their requested instruction and question.


       The trial evidence showed Amoco established two producing wells on Section 24

and this was the maximum allowed under Railroad Commission rules without a waiver. To

produce from a third well on Section 24, Amoco would have had to shut in the 1-24 well

or obtain a waiver based on a showing that the third well was necessary to prevent waste

or protect correlative rights. The evidence was conflicting as to whether Amoco could

have made such a showing.


       In supporting their argument that the evidence showed a reasonably prudent

operator would have drilled an additional well on the southwest quarter of Section 24,

appellants cite the testimony of their engineering expert, Rick Johnston, that a well drilled

at a mirror image to the 1-23 well would have produced gas at the same rate as the 1-23

and would have made a reasonable profit. His opinion was based upon the opinion of

appellants’ geologist that the A chert production zone was centered in the southwest

quarter of Section 24.



                                             6
      In response, Amoco presented expert testimony to the effect that the information on

which appellants’ geologist’s opinion was based was equally consistent with the zone

being centered elsewhere. Their expert opined that a seismic survey of the area indicated

the zone did not extend to the southwest quarter of Section 24, and a well drilled there

would not have been profitable. Amoco also presented evidence that it had invested in

excess of five million dollars developing the reserves under Section 24.


       This evidence requires us to determine whether it was some evidence of their claim

for failure to develop the lease or only supported their drainage claim. Appellants rely on

two portions of their expert’s testimony that the well they sought:


       . . .would be a development well. The different types of wells that are
       making this distinction would be an exploratory well, where you are going
       into an area where you don’t have production from a particular producing
       horizon. That is an exploratory well. Here we have production from a
       particular interval that we are trying to establish production in Section 24 for.
       So I would consider it to be a developmental well. And development wells
       typically have lower risks, greater chance of success.


This particular testimony was elicited in the context of the chances of the well desired by

appellants being successful.      The other portion of his testimony with respect to a

development well was also in response to a question seeking an explanation of a

“development” well and is as follows:


       Well, a development well is an additional well placed into a proven
       producing reservoir. The reservoir that Dr. Kerr has mapped, that the 1-23
       produces from, is what I consider to be a proved producing reservoir.
       Somebody trying to drill another well into that reservoir is drilling what I call


                                              7
         a development well . . . An exploratory well is, you are drilling in an area,
         trying to establish production from a horizon that is not being produced in the
         immediate area . . .


         In both instances, a development well is distinguished from an exploratory well in

terms of risk. Under Texas law, there is no independent implied covenant to explore the

lease apart from the covenant to develop. Sun Exploration & Production Co. v. Jackson,

783 S.W.2d 202, 204 (Tex. 1989). The statements also followed the expert’s testimony

that “the hypothetical offset protection well is going to be what I would term a development

well.” Taken together, the statements merely establish that a well drilled to protect from

drainage is, by definition, a development well because it is drilled into a known producing

reservoir. They are not probative on the question of a lessor’s implied duty to develop the

lease.


         Appellants also claim that the testimony from their engineering expert that a

reasonably prudent operator would have sought administrative relief from the Railroad

Commission and would have been able to obtain it applies both to the obligation to offset

and the obligation to develop. However, the record does not support that interpretation.

Just prior to the expert’s testimony on the subject, he stated, “we are trying to offset the 1-

23 well . . .” [emphasis added]. Just after his testimony on the subject, he was asked when

would a “hypothetical reasonably prudent operator have drilled and completed the

hypothetical offset protection well?” [emphasis added]. The testimony itself makes no

reference to the development obligation.



                                               8
       Appellants cite General Crude Oil Co. v. Harris, 101 S.W.2d 1098 (Tex.Civ.App.--

Texarkana 1937, writ dism’d ), for the proposition that a court may allow recovery for both

drainage and for oil lost from recovery as a result of the failure to reasonably develop. Id.

at 1102. However, the unique facts of the case showed that the movement of oil through

the formation meant that a delay in production would result in a net loss of oil recovered.

Id. Here, there was no evidence that production from the 1-24 well would result in any net

loss of gas beyond that lost by any drainage.


       This record does not show that appellants presented legally sufficient evidence to

support a finding that Amoco’s failure to drill an additional well on Section 24 breached its

implied covenant to reasonably develop the lease. Without legally sufficient evidence, the

court did not err in refusing the requested instruction and question. Appellants’ first point

is overruled. That holding obviates the need to address Amoco’s waiver argument.


        Accordingly, the judgment of the trial court must be, and is hereby, affirmed.



                                                  John T. Boyd
                                                  Senior Justice




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