Lasater v. ConVest Energy Corp.

• Decision Date: 30 April 1981
• Docket Number: No. 5592,5592
• Citation: 615 S.W.2d 340
• Parties: Mollie Lupe LASATER et al., Appellants, v. CONVEST ENERGY CORPORATION et al., Appellees.
• Court: Texas Court of Appeals

Page 340

615 S.W.2d 340

Mollie Lupe LASATER et al., Appellants, v. CONVEST ENERGY CORPORATION et al., Appellees.

No. 5592.

Court of Civil Appeals of Texas, Eastland.

April 30, 1981.

Rehearing Denied May 21, 1981.

Charles Florsheim, Law, Snakard, Brown & Gambill, Fort Worth, for appellants.

Dan G. Matthews, Fulbright & Jaworski, B. Rice Aston, Nelson & Harding, Houston, James F. Buchanan, Kleberg & Weil, Corpus Christi, Lawrence Mann, Mann, Cronfell, Dickinson & Saldana, Laredo, Eugene D. Stewart, Petry & Petry, Carrizo Springs, C. H. Donegan, Jr., Donegan & Ryan, Seguin, Donato D. Ramos, Person, Whitworth, Ramos, Borchers & Morales, Laredo, Kenneth Johns, Vinson & Elkins, Houston, L. H. Warburton, Jr., Perkins, Oden, Warburton, McNeill & Adami, Alice, Michael McKinney, Stubbeman, McRae, Sealy, Laughlin & Browder, Midland, and Kenneth E. Lee, San Antonio, for appellees.

RALEIGH BROWN, Justice.

This is a directed verdict case. Mollie Lupe Lasater, individually, John B. Lupe, individually and John B. Lupe and Priscilla B. Lupe, Trustees, sought a judicial determination that a portion of an oil and gas lease executed by them and partially assigned to ConVest Energy Corporation had terminated for failure to pay delay rentals in compliance with the terms of the lease. ¹ The trial court granted a directed verdict for all defendants. Mollie Lasater, John Lupe, each individually and John Lupe and Priscilla Lupe, Trustees, appeal. We affirm.

Appellants are the owners of 2,937 acres of land and the minerals thereunder situated in Zavala and Dimmit Counties. An 80 acre parcel thereof was subject to an adverse claim by C. C. Winn. On January 16, 1976, appellants as lessors entered into an oil and gas lease with Arrow Petroleum Co. as lessee. By partial agreement, Arrow assigned to ConVest Energy Corporation such lease insofar as it covered 1,468.5 acres. The partial assignment covered alternate checkerboard tracts of basically quarter sections. It is undisputed that delay rentals in some amount were due on January 16, 1978, and that on such date ConVest tendered an amount for payment of delay rentals. The controversy concerns whether ConVest's tender was sufficient in amount.

The lease provided that it "hereby leases and lets exclusively into the said lessee ... the land in Zavala and Dimmit Counties, Texas, as described in Exhibit "A" attached hereto and made a part hereof for all purposes." Exhibit "A" set forth the specific descriptions of the land and stated, "The entire tract contains 2,937 acres, more or less." The lease further provided "that if lessors own an interest in said lands less than the entire fee simple estate, then the royalties, rentals and other payments to be paid Lessors shall be reduced proportionately."

The lease contained a typical "unless" clause: "4. This lease shall terminate one-year from the date hereof unless on or before said anniversary date and annually thereafter ... Lessee shall pay or tender to John B. Lupe ... Two Thousand Eight Hundred Fifty-Seven and 00/100 (2857.00) Dollars, and to Mollie Lupe Lasater ... Two Thousand Eight Hundred Fifty-Seven and 00/100 (2857.00) Dollars ..."

That paragraph further provided that from the stipulated sum of $2,857 for each lessor may be subtracted $1.00 per acre per half-section for each half-section on which a well was being drilled or had been drilled during the preceding lease year, and $2.00 per acre for each half-section, production from which had paid the lessors royalty equal to $2.00 per acre.

Paragraph 18 of the lease made it subject to a Lease Purchase agreement which was executed contemporaneously with the oil and gas lease. The lease purchase agreement dealt with the bonus paid and to be paid lessors. It provided that the sum of $118,736.92 was based on the bonus purchase price of $41.56 per acre calculated on the basis of 2857 acres. It further provided:

Each of the parties recognize that 80 acres, being the West 1/2 of the Southwest 1/2 of Survey 57, Abstract 366, Certificate 2647, Zavala County, Texas, may have an Oil and Gas Lease claimed by C. C. Winn. The Lessors do not acknowledge the validity of such Lease of C. C. Winn and have agreed to include the acreage in the attached lease without the requirements of the bonus price being paid at this time.

2. Each of the parties recognize that the lease is for 2,937.00 acres and the purchase price is now based on $41.56 per acre and to 2,857.00 acres. The Lease covers 80 acres being the West 1/2 of the Southwest 1/2 of Survey 57 Abstract 366, Certificate 2647, Zavala County, Texas. Each of the parties recognize that C. C. Winn may claim that there is an outstanding Oil and Gas Lease in his favor, or to his assigns. This in no way is to reflect that the Lessors acknowledge the validity of the Lease. It is agreed between the parties that at such time as a Release of such Lease is obtained or proof of the termination of the lease has been delivered to Lessee, Lessee agrees to immediately pay an additional $3,324.80 as bonus for this acreage.

The basic contention of appellants in the trial court was that ConVest failed to tender on or before January 16, 1978, as required by the lease, a sum equal to $2.00 per acre, less authorized credits, on its portion of the 2857 acres, being 1468.5 acres. Since the trial court instructed a verdict against appellants, we apply the rule as stated in Henderson v. Travelers Insurance Company, 544 S.W.2d 649 (Tex.1976):

In an instructed verdict case, our task is to determine whether there is any evidence of probative force to raise fact issues on the material questions presented. Upon review, we must consider all of the evidence in its most favorable light in support of the plaintiff's position and discard all contrary evidence and inferences. Anderson v. Moore, 448 S.W.2d 105 (Tex.1969); Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953)....

Appellants urge that the trial court erred in directing a verdict because there was evidence to support their contention that the lease required payment of delay rentals of $2.00 per acre and defendants failed to make or tender such a payment. We disagree.

The delay rental clause of the oil and gas lease provides for a stipulated sum of $2857 to each lessor less credits allowed for drilling and production. It does not provide for delay rentals of $2.00 per acre. The lease, as it provides for delay rentals, is so worded that it can be given a certain or definite legal meaning or interpretation and is, therefore, not ambiguous. Lewis v. East Texas Finance Co., 136 Tex. 149, 146 S.W.2d 977 (1941). Being unambiguous, the meaning and effect of the delay rental clause is, therefore, determined as a matter of law. Tower Contracting Company v. Flores, 157 Tex. 297, 302 S.W.2d 396 (1957). As stated by the court in Wooten Properties, Inc. v. Smith, 368 S.W.2d 707 (Tex.Civ.App. El Paso 1963, writ ref'd):

Where the wording of a contract is unambiguous, we do not have to deal with or concern ourselves with what intention existed in the minds of the parties, but must interpret such contract with respect to its intention and effect solely from the language used....

Universal C. I. T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951).

We overrule appellants' contention that the delay rentals were to be calculated on the basis of $2.00 per acre.

Next, appellants argue that the trial court erred in holding, by implication, that the 80 acres which were subject to an adverse claim were nevertheless effective under the lease.

As set forth herein, the lease in concise and unambiguous wording covered 2937 acres not 2857 acres as urged by appellants. Additionally, the lease purchase agreement executed contemporaneously with the oil and gas lease recognizes that the lease covered 2937 acres.

As the court said in Davis v. Andrews, 361 S.W.2d 419 (Tex.Civ.App. Dallas 1962, writ ref'd n. r. e.):

Whether an instrument is ambiguous is a question of law. The construction to be given an unambiguous instrument is a question of law and not one of fact. These elementary rules are so well established as not to require the citation of authorities.

The court also said:

If there is no ambiguity in a deed, the instrument will be enforced as written, even though it does not express the original...