
NO. 07-07-0137-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

SEPTEMBER 25, 2007
 ______________________________

CAPITOL INDEMNITY CORPORATION, APPELLANT

V.

RONZANI INC., D/B/A RONPARCO, APPELLEE
_________________________________

FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY;

NO. 96-214309-05; HONORABLE JEFF WALKER, JUDGE
_______________________________
 

Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ON MOTION TO DISMISS

	Capital Indemnity Corporation, appellant, has filed a motion to dismiss this appeal
because it has reached a resolution of the present controversy with Ronzani, Inc,
appellees.  No decision of this Court having been delivered to date, we grant the motion. 
Accordingly, the appeal is dismissed.  Tex. R. App. P. 42.1(a)(1).   Because the parties
have agreed that each shall be responsible for their own appellate costs, costs of this
appeal shall be borne by the party that incurred them.  See Tex. R. App. P. 42.1(d), 6.6. 
No motion for rehearing will be entertained and our mandate will issue forthwith.
 
							Mackey K. Hancock
							          Justice



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NO. 07-08-0137-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

MAY 22, 2009
______________________________

AURORA PETROLEUM, INC., DOROTHY L. MOORE, 
JANNITA WILLIAMS, JIMMY D. EDMONDS 
AND LINDA G. EDMONDS, APPELLANTS

V.

RONALD T. NEWTON AND WIFE ANGELA NEWTON, APPELLEES
_________________________________

FROM THE 46TH DISTRICT COURT OF HARDEMAN COUNTY;

NO. 10269; HONORABLE DAN MIKE BIRD, JUDGE
_______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
OPINION
          Appellants, Aurora Petroleum, Inc., Dorothy L. Moore, Jannita Williams, Jimmy D.
Edmonds, and Linda G. Edmonds, collectively Aurora, appeal a final judgment denying
them any relief and ordering that they pay attorney’s fees to appellees, Ronald Newton and
wife, Angela Newton.  By two issues, Aurora contends that the trial court committed
reversible error in entering its conclusions of law that resulted in a take nothing judgment
being entered against it.  Additionally, Aurora contends that the trial court erred in awarding
attorney’s fees to Newton.  We will affirm the trial court’s judgment.
Factual and Procedural Background
          This is an appeal that revolves around a 99.997 acre tract of land in Hardeman
County, Texas.  The title history to this tract of land was stipulated to by the parties prior
to a trial to the court and reflects that Newton owns all of the surface rights to the entire
tract, along with an undivided one-fourth (1/4) interest in the minerals and they hold the
executive rights to the entire tract.  Appellants, Dorothy Moore, Jannita Williams, and
Jimmy Edmonds and wife, Linda G. Edmonds, each own an undivided one-fourth (1/4)
interest in the minerals.  Each of these mineral interest owners’ mineral interest are subject
to a reversionary interest that will revert to the fee owner in the future unless the interest
is secured by production of oil, gas, or other minerals.  Appellant, Aurora Petroleum, Inc.,
sought to lease the 99.997 acre tract from Newton for the purpose of oil and gas
development.  Newton refused to lease the tract.  Subsequently, Aurora Petroleum, Inc.,
negotiated leases with all of the other mineral interest owners.  Eventually, after Newton
refused to enter into a lease agreement with Aurora Petroleum, Inc., a lawsuit was filed by
Aurora Petroleum, Inc. on behalf of all appellants seeking to force Newton to enter into a
lease for oil and gas exploration on the subject property.  
          At the time of trial, Aurora’s first amended petition sought a declaratory judgment
that Newton, as the holder of the executive rights, owed a duty to lease the property in
question and that, by refusing to lease the property, Newton had breached the duty owed
to the other owners of the mineral interest in question.  Additionally, the petition requested
that the trial court declare that, as a result of Newton’s breach of the fiduciary duty owed
to the other owners of the mineral interest, the executive rights to lease the property in
question would be divested from Newton and vested in the other mineral interest owners. 
Finally, the petition requested the award of attorney’s fees.  
          The trial court entered a take nothing judgment as to Aurora’s first amended original
petition.  Subsequently, the trial court entered findings of fact and conclusions of law. 
Some of the trial court’s conclusions of law are the subject of Aurora’s appeal.
 
Specifically, by its first issue, Aurora contends that the trial court erred in the following
conclusions of law:
          1. No duty to develop was created by deed.
          2. A fiduciary duty could exist between Newton and other mineral interest owners 
              if Newton executed a mineral lease.
 
          3. Newton did not execute a mineral lease.
 
          4. Newton breached no fiduciary duty.
Aurora’s second issue contends that the trial court erred in awarding attorney’s fees to
Newton.
Fiduciary Duty
          Aurora has not attacked the sufficiency of the evidence to support any of the findings
of fact entered by the trial court.  Accordingly, the only issue before us is the trial court’s
determination of the legal effect of those findings, the trial court’s conclusions of law.  In
other words, Aurora presents purely a question of law for the Court to review, which we will
review de novo.  See El Paso Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 312
(Tex. 1999).
          The right held by the holder of the executive right is the right to enter into oil and gas
leases.  See Schlitter v. Smith, 128 Tex. 628, 101 S.W.2d 543, 544 (1937).  What is the
duty that the holder of the executive right owes to the non-executive mineral right holders? 
Aurora suggests that the duty owed is a fiduciary duty arising out of the relationship
between the two parties.  Aurora argues that the trial court’s conclusions of law are in error
because they ignore the duty that Newton owes to non-executive mineral right holders. 
Aurora cites this Court to Manges v. Guerra and Hlavinka v. Hancock for the proposition
that the duty owed by Newton, to the non-executive mineral right holders, includes the duty
to enter into an oil and gas lease for the property on reasonable terms, should the
opportunity arise.  Manges v. Guerra, 673 S.W.2d 180 (Tex. 1984); Hlavinka v. Hancock,
116 S.W.3d 412, 418-19 (Tex.App.–Corpus Christi 2003, pet denied).  However, Aurora
has misread the facts of the Manges case and the holding of the Hlavinka case.  
          In Manges, the Texas Supreme Court was faced with a fact pattern where the holder
of the executive rights leased the property to himself at terms, which the evidence showed,
were more advantageous to Manges than to the other non-executive mineral right holders. 
Under those facts, the Texas Supreme Court did in fact find that Manges had breached a
fiduciary duty to the non-executive mineral right holders.  The duty, according to the Court,
was the duty of the holder of the executive right to acquire for the non-executive mineral
right holders every benefit that he exacts for himself.  Manges, 673 S.W.2d at 183.  In
Manges, because of the facts of the case, this duty could only arise after the oil and gas
lease had been entered into.  In the case of Hlavinka, the Corpus Christi Court of Appeals
differentiated between the fiduciary duty referred to by the Texas Supreme Court in
Manges, the duty to acquire benefits for all right holders, and the duty to develop which
arises upon the execution of an oil and gas lease.  Hlavinka, 116 S.W.3d at 420.
          The Texas Supreme Court has again spoken to the issue of the relationship between
the holder of the executive right and the non-executive mineral right holder in the case of
In re Bass.  In re Bass, 113 S.W.3d 735, 743 (Tex. 2003).  In Bass, the Texas Supreme
Court stated that, “a duty to develop a mineral estate arises not from a fiduciary
relationship, but from the implied covenant doctrine of contracts law in which courts read
a duty to develop into an oil and gas lease when necessary to effectuate the parties intent.” 
Id.  The court went on to state, “Conversely, a fiduciary duty arises out of agency law based
upon a special relationship between the two parties.”  Id.  A fiduciary duty and a duty to
develop are two distinct duties that have developed under different legal theories. Id. 
          In applying the lessons of Bass to the case before this Court, we immediately
recognize that, as in Bass, there is no existing oil and gas lease.  Therefore, there can be
no implied duty to develop from the executive right holder to the non-executive mineral right
holder.
  Further, since there is no implied covenant, the only duty that Newton owes to the
non-executive mineral right holders is to acquire every benefit for the non-executive right
holders that Newton would acquire for themselves.  Since, Newton has not leased, and,
therefore, has not acquired any benefit for themselves, they cannot have breached their
duty to the non-executive mineral right holders.  Id. at 745; see also Veterans Land Bd. v.
Lesley, No. 11-07-00034-CV, 2009 WL 147042, at *10-*11 (Tex.App.–Eastland January
22, 2009, no pet. h.).  Accordingly, Aurora’s first issue is overruled.
Attorney’s Fees
          Aurora next contends that, since the trial court entered a take nothing judgment
against it, the provisions in section 37.009 of the Texas Civil Practice and Remedies Code
do not apply and that, the trial court could not have relied upon those provisions to award
attorney’s fees.
  Thus, Aurora contends that the award of attorney’s fees to Newton is not
provided for and, therefore, in error.  
          Aurora’s argument is grounded upon the assumption that a take nothing judgment
is inappropriate in a declaratory judgment action.  However, section 37.003(b) of the Code
states, “The declaration may be either affirmative or negative in form and effect, . . . .”  See
§ 37.003(b).  Aurora’s first amended petition requested that the trial court declare that 
Newton owed the other mineral interest owners a duty to execute mineral leases.  Further,
the trial court was requested to find that the refusal to execute the mineral leases was a
breach of the duty owed.  By entering a take nothing judgment, the trial court found that
Newton did not owe a duty to the other mineral interest owners to execute a mineral lease. 
Therefore, Newton could not have breached the non-existing duty.  In this situation, the trial
court’s judgment was simply a denial of the relief requested in the first amended petition
for a declaratory judgment and, contrary to Aurora’s position, there is no fatal conflict
between the judgment entered by the trial court and the Texas Civil Practice and Remedies
Code.  
          Additionally, we note that section 37.009 provides that the trial court may award
“reasonable and necessary attorney’s fees as are equitable and just.” See § 37.009.  In this
case, the trial court entered an unchallenged finding of fact that $4,500 was a reasonable
attorney fee in this matter.  Since that finding has not been challenged by Aurora, it is
binding on the appellate court unless the contrary is established as a matter of law or there
is no evidence to support the finding.  See McGalliard v. Kuhlmann, 722 S.W.2d 694, 696
(Tex. 1986).   A review of the record reveals there is ample evidence to support the finding
of fact that the reasonable and necessary attorney’s fees were $4,500.  Further, the trial
court entered a conclusion of law that “because of the attempted coercion and the
necessity of Newton defending the lawsuit, the Court found attorney’s fees should be
granted in favor of Newton.”  A review of the record reveals that there is evidence to
support the trial court’s conclusion of law.  We cannot say that this conclusion of law is
erroneous as a matter of law.  See Texas Dep’t of Pub. Safety v. Stockton, 53 S.W.3d 421,
423 (Tex.App.–San Antonio 2001, no pet.).   
          The award of attorney’s fees in a declaratory judgment case is entrusted to the
sound discretion of the trial court.  See Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998). 
The limitations on the award are that the fees must be reasonable, necessary, equitable,
and just.  Id. at 21. This fact finding was not challenged by Aurora and is supported in the
record as is the court’s conclusion of law.  Accordingly, we overrule Aurora’s issue
regarding the award of attorney’s fees.
Conclusion
          Having overruled Aurora’s issues, we affirm the judgment of the trial court.

                                                                           Mackey K. Hancock
                                                                                    Justice
 
