Brannon v. Gulf States Energy Corp.

• Decision Date: 10 March 1977
• Docket Number: No. 4982,4982
• Citation: 548 S.W.2d 790
• Parties: M. J. BRANNON, Jr., et al., Appellants, v. GULF STATES ENERGY CORPORATION et al., Appellees.
• Court: Texas Court of Appeals

Page 790

548 S.W.2d 790

M. J. BRANNON, Jr., et al., Appellants, v.GULF STATES ENERGY CORPORATION et al., Appellees.

No. 4982.

Court of Civil Appeals of Texas, Eastland.

March 10, 1977.

Rehearing Denied March 31, 1977.

W. Scott Clark and Daniel M. Tartaglia, Fort Worth, for appellants.

Levie Old, Brownwood, John E. Rapier, Dallas, for appellees.

WALTER, Justice.

M. J. Brannon, Jr., and Otis Thompson filed suit against Clara Odessa Martin and Gulf States Energy Corporation seeking to have an oil and gas lease dated November 20, 1973 from Clara Odessa Martin to Mary Linn Elliott, under which plaintiffs are claiming, to be in full force and effect.Patricia A. Elliott and Henry W. Elliott III intervened asserting a 1/16 overriding royalty under the lease.From a take nothing judgment, the plaintiffs and intervenors have appealed.

Clara Odessa Martin executed an oil and gas lease on 202 acres of land located in Coleman County to Mary Linn Elliott on November 20, 1973.Mrs. Elliott assigned this lease to Master Drillers, Inc. and retained a 1/16 overriding royalty interest which she assigned to intervenors.

The delay rental was not timely paid on the Martin-Elliott lease.Royal Russell, President of Gulf States, mailed Mrs. Martin a letter dated January 17, 1975 stating he was enclosing a check dated January 17, 1975 in the amount of $202.00 for "lease rental" on the lease of her 202 acres of land.On the face of the check were the words "lease rental."On July 9, 1975, Mrs. Martin executed a lease on the same 202 acres to Gulf States.

The basic issue between the parties is whether the $202.00 payment from Gulf States is payment for the delay rental on the Martin-Elliott lease or payment of the bonus for the Martin-Gulf States lease.

The jury answered the issues as follows: (1) the Gulf States' check dated January 17, 1975 payable to Mrs. Martin was not paid by Gulf States as delay rental on the Martin-Elliott lease; (2) not answered; (3) Gulf States paid $202.00 as consideration for the Martin-Gulf States lease; (4) Mrs. Martin accepted payment as consideration for the Martin-Gulf States lease; (5) Gulf States drilled and made improvements on the 202 acres believing, in good faith, it had a valid right to drill; and (6) the value of the improvements made by Gulf States on the 202 acres was $200,000.

Appellants contend the evidence establishes conclusively the payment by Gulf States of $202.00 on January 17, 1975 was payment for the rental on the November 20, 1973 Martin-Elliott lease.

Mrs. Clara Odessa Martin testified substantially as follows:

I am a widow and I am 76 years old.I reside on Route # 1, Talpa in Coleman County.I understand there is a controversy about who owns the oil and gas lease on 202 acres of my land here in Coleman County.I leased this land to Mary Linn Elliott on November 20, 1973.I did not receive the delay rental provided for in the lease on or before November 20, 1974.I wrote Mrs. Elliott and informed her I did not receive the delay rental and asked her about my abstracts.Thereafter, I received a check from Gulf States for $202.00, "but it wasn't rental.It wasn't what I call rental."It was for a new lease.Mr. Mabry, Gulf States' geologist, came to see me a few days before Christmas and we came to an agreement on a lease.I was ready to go on a Christmas trip and I asked him if we could wait until after Christmas "to write this up.""So we made our agreement at that time."The bonus for the lease was $202.00 and the drilling of the well.I wasn't looking for a lot of money.I wanted a well drilled.My mother and father had leased the place years ago, but there had never been a well drilled on the place.On July 9, 1975, I executed the lease to Gulf States.

I know the plaintiffOtis Thompson and he never did talk to me about a tax sale.I never had a conversation with Mr. Thompson wherein I told him the rentals were paid late on the Elliott lease, the first lease.I never discussed that with Mr. Thompson and the second time he came out, he told me he was interested in my property and I told him it was already leased and he didn't say anything about rentals.I received a letter on or about January 17, 1975 from Royal Russell of Gulf States and a check from him for $202.00 and this was the amount of money we agreed on for the new lease, because this other lease terminated a year after I first leased.

Three gentlemen came to my home on July 29, 1975 and one of them wrote out a statement and I signed it.The statement is as follows:

"Coleman, Texas

July 29, 1975

I, Clara Odessa Martin, remember writing Mary Lynn Elliott about last November and telling her I had not received the rentals on my lease to her dated Nov. 20, 1973 covering 202 acres of my land.

She wrote back that they would be paid, and they were paid a few days later.They were late, but I accepted the payment and deposited the money in the Coleman Bank.

I later told Mr. Otis Thompson that I had been paid and the lease of Nov. 73 was still valid.

s/ Clara Odessa Martin"

I was nervous when I made this statement because they suggested to me that if I didn't I would be subpoenaed.When he said something about a subpoena, it scared me to death.

On or about the 9th day of July, 1975, I made an affidavit as follows:

"I, CLARA ODESSA MARTIN, Lessor of that certain Oil, Gas and Mineral Lease, dated and executed November 20, 1973, between CLARA ODESSA MARTIN, a widow, Lessor and MARY LINN ELLIOTT, Lessee covering the following lands, to-wit:

Tract 1: The NE/4 of Section 62, C. D.

Cleveland Survey, Abstract 1156

and containing 161.5 acres, more

or less and;

Tract 2: The south fourty and one-half

(40 1/2) acres, of the SW/4 of

Section 27, G. H. and H. R. R.

Survey, Block 1, all of which are

located in Coleman County, Texas State that pursuant to the terms and conditions of said Lease, no delay rentals were paid to me on or before November 20, 1974, nor were operations begun by said Lessee for the drilling or mining on said lands on or before November 20, 1974, nor were said lands pooled as set out in said Lease on or before November 20, 1974.

s/ Clara Odessa Martin

s/ CLARA ODESSA MARTIN"

This affidavit has been recorded in the deed records of Coleman County.

The testimony of Mrs. Martin and other facts and circumstances in evidence constituted some evidence of probative force and support the jury's answers to Special Issues # 1.Martinez v. Delta Brands, 515 S.W.2d 263(Tex.1974).

Appellants' point the Court erred in granting appellees' motion in limine is without merit.It is the subsequent exclusion of the testimony which may or may not constitute a reversible error.In Biard Oil Company v. St. Louis Southwestern Railway Company, 522 S.W.2d 588(Tex.Civ.App. Tyler 1975, no writ), the court said:

"It is never error for a trial court to overrule a motion in limine which seeks to preclude the introduction of evidence.The party opposing the admission of certain evidence still has the burden of interposing a specific objection at the time the evidence is tendered and appeal from its admission over his objection . . . "

Appellants contend the court erred in sustaining appellees' objection to questions asked Royal Russell about the identity of investors who put up the money for drilling wells on the Martin property, the amount of their investment and the interest granted to them for their investment.They also contend this testimony was relevant to the issue of whether or not the drilling of the three wells was reasonable and prudent.

Rule 418, T.R.C.P., provides in part:

" . . . If complaint is made of the improper admission or rejection of evidence, the full substance of such evidence so admitted or rejected shall be set out with reference to the pages of the record where the same may be found . . . "

This provision of the rule has not been complied with by appellants.Appellants have cited no authorities in support of this point.Points that are not briefed are waived.St. Paul Mercury Insurance Company v. Sugarland Industries, Inc., 406 S.W.2d 778(Tex.Civ.App. Eastland1966, writ ref. n. r. e.).

We find no merit in appellants' contention the court erred in overruling their motion for summary judgment.In Morrow-Thomas, Inc. v. Harris, 466 S.W.2d 323(Tex.Civ.App. Eastland 1971, no writ), we held:

"Appellant's first and second points, that the trial court erred in overruling its motion for summary judgment are overruled.This is an appeal from a 'take nothing' judgment tried on its merits by a jury.Whether the trial court did err in overruling appellant's motion for summary judgment before the case was tried on the merits is not a matter for consideration on appeal.Dyche v. Simmons, 264 S.W.2d 208(Tex.Civ.App., writ ref., n. r. e.);Stewart v. Lomax, 395 S.W.2d 82(Tex.Civ.App., writ ref., n. r. e.)."

Appellants contend the court erred in admitting the testimony of Royal Russell of Gulf States to the effect the $202.00 paid by Gulf States to Mrs. Martin was bonus for a new lease because such testimony violates the parol evidence rule.

Appellants have not complied with the provision of Rule 418, T.R.C.P., in that they have made no reference to the pages of the record where the evidence may be found.

Mr. Russell testified substantially as follows During December of 1974, I was acquainted with August Powe.He is a rancher and farmer at Valera and lives at Mrs. Martin's place.During that time, I had a conversation with Mr. Powe about the Martin-Elliott lease.I told him that if he would talk to Mrs. Martin and get me a new lease, I would drill her a well and pay her $202.00.Mr. Powe was going to talk to Mrs. Martin, and my geologist, Frank Mabry, was going to talk to Mrs. Martin about the lease.If this arrangement was agreeable with her, I was going to send her the $202.00 and drill her a well.About January 17, I mailed Mrs. Martin a check for $202.00.

He was then asked the following question:

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