Foote v. Texcel Exploration, Inc.

• Citation: 640 S.W.3d 574
• Decision Date: 20 January 2022
• Docket Number: 11-20-00028-CV
• Parties: Tim FOOTE and Keith Cypert, Appellants v. TEXCEL EXPLORATION, INC. and Tommy Decker, Appellees
• Court: Court of Appeals of Texas

640 S.W.3d 574

Tim FOOTE and Keith Cypert, Appellants

v.TEXCEL EXPLORATION, INC. and Tommy Decker, Appellees

No. 11-20-00028-CV

Court of Appeals of Texas, Eastland.

Opinion filed January 20, 2022

Blair Oscarsson, Amarillo, for Appellees Texcel Resources, LLC, Texcel Exploration, Inc.

John H. Lovell, Amarillo, Courtney Miller, Fort Worth, for Appellants.

John S. Kenefick, Bryan Gerald Rutherford, Dallas, for Appellee Decker, Tommy.

Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.

JOHN M. BAILEY, CHIEF JUSTICE

This is an appeal from a take-nothing jury verdict involving a claim for injury to cattle that were injured when they entered the area where oil and gas operations were occurring.

Appellants, Tim Foote and Keith Cypert, brought suit for damages to cattle killed and injured on and in the area surrounding the area of operations for an oil and gas lease known as the Elizabeth Hertel Lease (the Hertel Lease) in Knox County. Appellants alleged that Texcel Exploration, Inc. and its agent, Tommy Decker (Decker), negligently failed to construct and maintain an adequate fence around the wellsite and tank battery at the Hertel Lease, which created a dangerous condition on the property that proximately caused the death and injury of the cattle. The parties argued the case below on the theories of premises liability and negligent undertaking. The jury found that the cattle were not licensees at the time of their injury. Based on this finding by the jury, the trial court entered a take-nothing judgment.

Appellants raise six issues for our review, contending that there were multiple errors in the trial court's charge, that the jury's verdict was against the great weight and preponderance of the evidence, that the trial court erred in failing to render a partial judgment in their favor based on an in-court stipulation, and that the trial court erred in denying their motion for new trial based on an allegation of juror misconduct. We affirm.

Background Facts

James Styles and his wife own a parcel of land in Knox County. The Hertel Lease is located on their property. In April of 2017, the Styleses had leased the land to Macky Yates, conveying to him the right to possess the whole parcel in exchange for cash. Styles testified that Yates grew wheat on the property and that Yates had the right to lease the property to others for grazing. Styles also testified that Texcel was the operator of the Hertel Lease. The mineral lease did not require Texcel to fence off its portion of the property or its equipment.

Foote, an experienced farmer and rancher, made arrangements to graze his cattle in Knox County, paying Cypert by the head to take care of them. Cypert made arrangements with Yates for 650 head of Foote's cattle to be placed on the Styleses’ property in Knox County. While making the arrangements, Foote traveled to Knox County, met with Cypert, and went to look at Cypert's operation and facilities. However, Foote testified that he never went to the Yates pasture before sending his cattle.

Decker is the pumper for Texcel on the Hertel Lease. As the pumper, Decker checked on the Hertel Lease every day around 8:00 a.m. Yates notified Decker before the cattle were turned out, and Decker notified David Stapp, Texcel's owner. Stapp instructed Decker to call Texcel's electrician, Rick Decker,¹ to make sure the electric fence around the wellsite and tank battery of the Hertel Lease was working. Decker testified that he had to call Stapp because he did not have the authority to make expenditures on the Hertel Lease.

The fence at issue was a single-wire electric fence. The fence was constructed with metal T-posts holding a single electric wire strung on prongs on an insulator. As long as the wire is on the insulator, the fence is on or "hot." If the wire falls to the ground or otherwise hits brush or other material, it can ground out and is no longer hot. Rick Decker, Veterinarian James Gober, and Cypert all testified that a single-wire electric fence is frequently used and can be effective for turning or restraining cattle.

Foote pastured more than 650 head of cattle on the pasture around March 22, 2017. Decker testified that as soon as the cattle were turned out, they began to knock down the fence and get inside the operations area of the Hertel Lease by the tank battery. He testified that he called Stapp, who told Decker to have the fence repaired. Decker further testified that Rick Decker checked to see that the fence was still hot but that the cattle continued to get inside the fenced area. Decker testified that he would "shoo" the cattle out, replace the wire on the insulator, and make sure the wire was hot. Decker testified that he told Cypert's employee that the cattle were tearing the fence down every day. Cypert testified that he never saw cows in the area around the tank battery and that Decker never told him that the cattle were tearing down the fence. However, Cypert also testified that the cattle had knocked down the fence on a couple of occasions and that he had set it back up and made adjustments.

The cattle were injured on April 4, 2017. That morning, Decker arrived around 8:00 a.m. to check the well and equipment. He testified that when he left the well, the fence was up and was hot. That afternoon, Cypert arrived to check on the cattle and discovered oil and saltwater on the cows, in the tank battery area, and in the pasture. Sometime during the day, the cattle pushed through the fence and broke a PVC pipe on a tank holding saltwater and oil, which caused a spill. Cypert called Decker between 2:00 and 3:00 p.m. to alert him of the oil spill. Cypert estimated that around 300 of the cows were inside, or had been inside, the area that was originally fenced.

After the accident, Stapp remediated the spill and notified the Railroad Commission that he planned to have a new fence constructed around the tank battery. Cypert and Foote relocated the sick cattle, but the healthy cattle remained on the Yates pasture. Before Stapp could have someone put up a new fence, Cypert had new T-posts and barbed wire installed. Cypert paid for the new fencing, and Texcel refused to reimburse Cypert. Stapp testified that because Cypert installed a new fence, he "didn't feel like [he] needed to" pay for or install a new fence himself.

Foote testified that 132 head of cattle died as a result of ingesting oil. His damages included veterinary bills, special feed, shipping cost to relocate cattle from the Yates pasture, and lost profits from the surviving cattle being sold under the expected weight. Cypert alleged damages in the amount of $2,178 for a new five-wire barbed-wire fence.

After the jury found that the cattle were not licensees, the trial court entered a take-nothing judgment in favor of Texcel and Decker. Appellants filed a motion for new trial wherein they alleged juror misconduct on the basis that Juror Wilde purposely withheld information during voir dire about a "physical altercation" between her husband and Cypert. Specifically, Appellants alleged that Juror Wilde did not disclose this information when asked if "she knew Plaintiff Cypert or knew of him." Appellants’ motion for new trial was overruled by operation of law. This appeal followed.

Analysis

Premises Liability – Allegation of Jury Charge Error

We note at the outset that the law applicable to a case of this type has been well established in Texas jurisprudence. As summarized by the El Paso Court of Appeals in Satanta Oil Co. v. Henderson :

[T]he owner/lessee of the surface estate in order to recover against the mineral lessee or operator for injury to his cattle must plead, prove and obtain a jury finding on one of the following:

• That the lessee/operator intentionally, wilfully or wantonly injured the cattle; or

• That the lessee/operator used more land than was reasonably necessary for carrying out the purposes of his lease and that as a result of some negligent act or omission on his part, he proximately caused an injury to the surface owner/lessee's cattle.

855 S.W.2d 888, 889–90 (Tex. App.—El Paso 1993, no writ). Appellants neither sought nor obtained jury findings on either of the two viable theories of liability recognized in Texas. To the contrary, Appellants seek to expand the law by asserting that the law applicable to protect persons from a premises defect should be extended to their cattle. As set forth herein, Appellants’ request to expand the law is unwarranted.

In Appellants’ first issue, they contend that the trial court erred by submitting Question 1 to the jury because it is a question of law. The question provided as follows:

On the occasion in question, were [Foote's] cattle licensees on that part of Texcel Exploration, Inc.’s premises under consideration?

A "licensee" is on the premises of another with the express or implied permission of the possessor but without an express or implied invitation.

Answer "Yes" or "No."

ANSWER: No

The remaining questions in the trial court's charge were conditionally submitted based upon an affirmative finding to Question 1. Thus, the jury only answered Question 1.

Appellants objected to the submission of Question 1 on the basis that the facts were undisputed and that they proved that the cattle had the status as invitees as a matter of law "since the cattle were present for the mutual benefit of the lessee, Mackey Yates, and of the landowner, James Styles." Appellants are making the same contention on appeal. They are asserting that because Foote was in business with the farmer-lessee and the landowner, his status² is extended to his cattle for the entire premises, including the area where Texcel was conducting oil and gas operations. Appellants further contend that there was undisputed evidence at trial that the oil and saltwater spilled outside of Texcel's fenced area and onto the Yates wheat pasture.

Appellants base their first issue on the contention that the evidence established as a matter of law that the cattle had...