Ambassador Oil Corp. v. Robertson

• Decision Date: 04 November 1964
• Docket Number: 11236,Nos. 11219,s. 11219
• Citation: 384 S.W.2d 752
• Parties: AMBASSADOR OIL CORPORATION and Deane Gill, Appellants, v. French M. ROBERTSON, Appellee. BLACKWELL ZINC COMPANY, Inc., et al., Appellants, v. French M. ROBERTSON, Appellee.
• Court: Texas Court of Appeals

Page 752

384 S.W.2d 752

AMBASSADOR OIL CORPORATION and Deane Gill, Appellants, v. French M. ROBERTSON, Appellee.

BLACKWELL ZINC COMPANY, Inc., et al., Appellants, v. French M. ROBERTSON, Appellee.

Nos. 11219, 11236.

Court of Civil Appeals of Texas, Austin.

Nov. 4, 1964.

Rehearing Denied Nov. 25, 1964.

Hudson, Keltner, Smith & Cunningham, Fort Worth, Phipps, Smith & Alexander, McLeod, Mills, Shirley & Alexander, Galveston, Stubbeman, McRae, Sealy & Laughlin, Rush Moody, Jr., & James G. Nolan, Midland, of the firm Black & Stayton, Austin, Perkins, Bezoni & Kirwan, Midland, Paul Petty, Ballinger, McMahon, Smart, Sprain, Wilson & Camp, Abilene, for appellants.

King, Willoughby, Vletas & Dickenson, Abilene, Clark, Thomas, Harris Denius & Winters, Austin, for appellee.

ARCHER, Chief Justice.

French M. Robertson, a surface and royalty owner sued Blackwell Zine Company, Inc., American Metal Climax, Inc., American Climax Petroleum Corporation and Amax Petroleum Corporation, as one or a group of affiliated companies, and Union Texas Petroleum, Joseph E. Seagram & Sons, d/b/a Frankfort Oil Company, and Joseph E. Seagram & Son, Inc., the second group, as claimed operators of the Goldsboro Unit in the East Goldsboro (Gardner) Field in Coleman and Runnels Counties, Texas. The plaintiff sought a Declaratory Judgment determining (a) the title to all of the personal property upon a tract of land, the surface of which Robertson claimed as his; (b) the use of water by 'defendants' in the unit operations; and (c) plaintiff's 'rights, status or other legal relations thereto.' He also sued for an accounting of all salt water sued for the waterflooding of the unit and for unit operations, and for money damages for the water used in such unit operations and for water furnished operators of adjoining leases within the same pool. Finally, the plaintiff asked for an injunction restraining defendants 'from any further right to sell and use any of the subsurface waters in the future without the express written agreement and consent of the plaintiff.

In an amended petition plaintiff alleged that he had entered into a sales contract of oil and gas leases and properties in the Goldsboro-Gardner field and had subsequently entered into a Unitization Agreement covering said properties and providing for the waterflooding operations. He pleaded that he had also 'entered into a Plant Site and Water Use Lease Agreement on ten acres of the Bright tract within the unit,' which 'Plant Site and Water Use Lease contract superseded, merged and/or substituted all other agreements' and which Plant Site Lease 'had terminated and was of no further force and effect,' and in this pleading plaintiff alleged that he 'does hereby join the following additional Defendants as indispensable parties who are representatives of a class of royalty owners in the Goldsboro-Gardner Field Unit of Runnels and Coleman Counties, Texas,' and thus added as parties Wallace H. Newton, Nana D. Newton, Harris D. Newton, First National Bank of Abilene, Texas, Trustee under the Will of S. M. Jay, deceased, W. J. Fulwiler, Jr. and Annie E. Bright.

Trial was had with the aid of a jury and based on the verdict, judgment rendered against Blackwell Zinc Company Inc., American Metal Climax, Inc., American Climax Petroleum Corporation, Amax Petroleum Corporation, Union Texas Petroleum, Joseph E. Seagram & Sons, d/b/a Frankfort Oil Company, and Joseph E. Seagram & Son, Inc., jointly and severally.

Appellant filed motion for new trial, which was overruled. The order was dated November 22, 1963. A Nunc Pro Tunc order was later entered reciting that the correct date of the order was November 25, 1963.

On February 6, 1964, Robertson filed his Motion to Affirm on Certificate under Rule 387, Texas Rules of Civil Procedure, in this Court, giving notice to attorneys for appellants.

On February 8, 1964 acting Judge John Sutton entered a Nunc Pro Tunc order, overruling the amended motion for new trial, correcting the record 'to show that the order was, in fact, rendered, signed and entered on the 25th day of November, 1963.'

On February 26, 1964 this Court entered an order suspending action on the pending motions 'for 30 days within which appellants may, if they so desire, take steps to enter a Nunc Pro Tunc order in the premises as contemplated by Rule 316. Upon completion of such proceedings, if any, appellants may, if they desire, tender for filing herein, a supplemental transcript and if evidence is introduced, a supplemental statement of facts reflecting the record of such proceedings.'

On March 12, 1964, a hearing was held and Judge Sutton reaffirmed his order overruling the amended motion for a new trial as of November 25, 1963, to which exceptions were taken and notice of appeal was given by Blackwell Zinc, appellants.

On March 18, 1964 our Supreme Court refused leave to Robertson to file a petition for mandamus seeking to require this Court to affirm on certificate.

In appellee's brief on the procedure of this appeal, it is said that the basic issue is:

'Does Rule 306b give a trial court the power to extend the time within which an appellant must perfect his appeal under 386, after such time has expired on the face of the record and appellee has moved the Court of Civil Appeals to affirm on certificate under Rule 387?'

We believe that this question should be answered in the affirmative.

Rule 306b provides:

'When a judgment or order is entered nunc pro tunc, the right of appeal shall date from the date of rendition of the nunc pro tunc judgment or order, which shall be deemed to be the date upon which the trial judge signed the nunc pro tunc judgment or order if the date is shown therein; and the periods within which the various steps in such an appeal are to be taken shall be computed from that date.'

Under Rules 363 and 306b, Blackwell Zinc, appellants, have perfected a new and different appeal from that involved in appellee's Motion to Affirm on Certificate, and their right of appeal dates from the rendition of the Nunc Pro Tunc order, which in this case was March 12, 1964. Texas Employers' Insurance Association v. Hartel, Tex.Civ.App., 289 S.W.2d 380, er. dism.; Hernandez v. Baucum, Tex.Civ.App., 338 S.W.2d 481, no writ history; Knox v. Long, 152 Tex. 291, 257 S.W.2d 289; 4 McDonald, Texas Civil Practice, Section 17.07, p. 1323.

We will now consider the case on the merits and will endeavor not to repeat what has been said hereinabove.

Blackwell Zinc's appeal is based on 29 points assigned as error, the first 5 are to the effect that the trial court erred in overruling pleas in abatement and motions to dismiss, lack of jurisdiction because of any effective joinder or indispensable parties, and that the surface and royalty owners who had signed the Unitization Agreement were not represented in person or by attorney in the trial, and there was no effective joinder of indispensable parties so as to insure the adequate representation of all of the class.

In the pleading on which trial was had plaintiff stated that:

'For cause of action herein Plaintiff would show to the Court that the Plaintiff and 'Defendants' entered into a sales contract of oil and gas lease properties concerning the Goldsboro-Gardner Field in Coleman and Runnels Counties, Texas, and subsequently entered into a Unitization Agreement covering said properties, and subsequently plaintiff and 'Defendants' entered into a Plant Site and Water Use Lease Agreement (attached hereto and made a part hereof for all purposes and references) on a certain 10 acres of land on the Bright Fee Land described above and owned by the Plaintiff; that the Unitization Agreement described the acreage involved in the unit operations, and the Plant Site and Water Lease contract superseded, merged and/or substituted all other agreements heretofore existing and expressly granted to the 'Defendants' the right to drill a water well and that said water well was drilled to serve all said unit operations and which 'Defendants' were granted the right to use water * * * Furthermore, the Plant Site and Water Use Lease superseded, merged and/or substituted all other previous agreements and the 'Defendants' ought to be estopped to claim any other rights by any prior agreements.'

Plaintiff sought title and possession of all the personal property on the 10 acre plant site, for injunction, etc.

The Unitization Agreement provides in Article 3, Section 3.5 Injection Rights:

'Royalty Owners hereby granted unto Lessee the right to inject into the Unitized Formation any substances in whatever amounts Lessee deems expedient, including the right to place and maintain injection wells on the Unit Area and to use any producing or abandoned oil or gas wells for said purposes. Royalty Owners further grant unto Lessee the right to drill for and/or extract subsurface waters underlying the Unit Area and to use the same for injection purposes anywhere within the Goldsboro Pool in Coleman and Runnels Counties, Texas. Lessee shall not be required to pay for water so used. Lessee shall also have the free use of any other water from the Unit Area for operations hereunder except water from Royalty Owners' wells, private lakes or ponds or irrigation ditches.'

In reply to the action for cancellation, answers were made by two of the named 'indispensable parties,' The First National Bank of Abilene, Trustee under the will of S. M. Jay, and W. J. Fulwiler, Jr., who denied the allegations.

All other parties selected by the plaintiff to represent the class made default. No service was requested or had, or notice given to the other 66 signing parties to the Unitization Agreement. Pleas in abatement were filed, by reason of the absence of the parties to the agreement, and were overruled.

The plaintiff contends that the agreement had been superseded and cancalled in the main by the Plant Site Lease. This lease was signed by plaintiff and Climax Molybdenum...