Ottis v. Haas

• Decision Date: 15 June 1978
• Docket Number: No. 1297,1297
• Citation: 569 S.W.2d 508
• Parties: Edward J. OTTIS et ux., Appellants, v. Charles F. HAAS, Appellee.
• Court: Texas Court of Appeals

Page 508

569 S.W.2d 508

Edward J. OTTIS et ux., Appellants, v. Charles F. HAAS, Appellee.

No. 1297.

Court of Civil Appeals of Texas, Corpus Christi.

June 15, 1978.

Rehearing Denied Aug. 29, 1978.

Larkin T. Thedford, Edna, for appellants.

Richard B. Collins, Duckett, Bouligny & Collins, El Campo, William J. Tucker, Wood, Boykin & Wolter, Corpus Christi, for appellee.

OPINION

NYE, Chief Justice.

This is a directed verdict case. Plaintiffs, Edward J. Ottis and wife, Jane, are surface owners of a tract of land that is subject to an oil and gas lease. They brought suit against the lessee, Charles F. Haas, seeking an injunction to prohibit the defendant from installing a set of tank batteries upon plaintiffs' land and in the alternative, damages to their land caused by the particular location of the tank batteries. At the close of the plaintiffs' case in chief the trial court granted defendant's motion for instructed verdict. Plaintiffs perfected their appeal to this Court.

Plaintiffs purchased a fee simple interest in the surface only of a 13.48 acre tract of land in Jackson County, Texas, out of a larger tract of land owned by the grantors, J. L. and Martha Kopecky. The deed dated February 14, 1975, evidencing the transaction reserved unto the Kopeckys the mineral estate in the 13.48 tract and all executory rights incident thereto.

On April 28, 1975, the Kopeckys and the defendant lessee entered into an oil and gas lease which encompassed 60 acres of land, including the 13.48 acre tract owned by plaintiffs. The lease in question contains a provision prohibiting the lessee from drilling a well within "two hundred (200) ft. of any residence or barn now on said land without lessor's consent." After the signing of the lease, plaintiffs commenced building a brick home on their land. During the time plaintiffs' home was in the process of construction, the defendant lessee commenced drilling operations. The lessee completed a well approximately 312 feet north of plaintiffs' homesite, and placed the tank batteries in question approximately 50 feet further to the north of the well.

Plaintiffs instituted this suit seeking to enjoin the defendant from locating the tank batteries on plaintiffs' land because such location, in close proximity to plaintiffs' home, constituted a nuisance and unreasonable danger, and because there was no adequate remedy at law. In the alternative, plaintiffs prayed for damages representing the decrease in market value of their land caused by the location of the tank batteries. The plaintiffs contend that the basis for their damages is the provision contained in the reservation clause of their warranty deed. ¹ In support of this claim, plaintiffs alleged that the deed had been recorded prior to the execution of the oil and gas lease and, therefore, defendant lessee was charged by law with knowledge of this damage clause.

The lessee filed a general denial and alleged that his liability for damages, if any, should be governed by the damage clause contained in the oil and gas lease ² and not the damage clause contained in the deed. On the day of trial, the trial court granted lessee's motion in limine to the effect that plaintiffs should refrain from mentioning during trial the general damage clause contained in the deed on the basis that such damage clause, as a matter of law, constituted a personal covenant which bound only the plaintiffs' grantors, the Kopeckys, who were not parties to the present suit.

Plaintiffs' evidence included the testimony of one expert witness who testified to the effect that the general practice of the oil and gas industry in Jackson County, Texas, was to locate tank batteries at a distance of not less than 1200 feet from residential dwellings; that, in his opinion, the location of the tank batteries in question was dangerous; that relocating the tank batteries to the west edge of plaintiffs' land behind a particular barn would not affect the production of the well; and that the cost of such relocation would be approximately $2,500.00.

At the close of plaintiffs' evidence, the defendant presented his motion for instructed verdict. Defendant's motion, in essence, was predicated upon the following two general grounds: 1) that plaintiffs failed to plead or prove a viable theory of recovery against defendant because defendant's obligations were governed solely by the general damage clause contained in the oil and gas lease and plaintiffs had failed to plead or prove a breach of said lease provision or a violation of any other duty by the defendant; and 2) that plaintiffs had failed to plead or prove any specific elements of recoverable damages under the damage clause of the lease provision or under any other possible theory of recovery. After hearing the arguments of counsel, the trial court granted defendant's motion.

Plaintiffs present three general points of error on appeal complaining of the trial court's action in granting defendant's motion for instructed verdict. The major difficulty presented in this appeal is that plaintiffs have made multifarious, general arguments in support of more than one theory of recovery under each general point of error. Many of these arguments have not been briefed and many relate to alleged errors committed by the trial court which have not been preserved for appellate review. Consistent with our general policy of liberally construing the briefing rules in order to give every possible effect thereto, we construe each point of error in light of our understanding of appellants' arguments and the authorities contained thereunder. See our local rules relative to "Briefs" in Continental Oil Co. v. Dobie, 552 S.W.2d 183, 187 (Tex.Civ.App. Corpus Christi 1977, writ ref'd n.r.e.) and Rules 414-422, T.R.C.P. We cannot consider some of plaintiffs' general arguments in spite of our liberal briefing policy because they do not relate to any specific point of error.

First, we consider plaintiffs' main argument throughout their brief concerning the relationship of the damage clause contained in the deed to their present claims against the defendant lessee. Plaintiffs' theory at trial was that the general damage clause contained in the warranty deed is a covenant running with the land which obligated the lessee to compensate the plaintiffs for all damages caused to the surface estate, including the alleged decrease in market value of plaintiffs' 13.48 acre tract of land, notwithstanding a more restrictive damage clause contained in the oil and gas lease. Lessee's theory, on the other hand, was that the damage clause contained in the deed was, at most, a personal covenant between the plaintiffs and the plaintiffs' grantors, the Kopeckys, and that, since the grantors were not made parties to the suit, any evidence concerning the damage clause contained in the deed should not be admitted. The trial court, agreeing with lessee's position, granted lessee's motion in limine (which precluded plaintiffs from introducing that particular portion of the warranty deed into evidence), and prohibited any testimony offered concerning the damage clause contained therein. Plaintiffs, however, offered into evidence the deed with the damage clause and objected to the trial court's adverse ruling. On appeal, plaintiffs apparently contend that the general damage clause contained in the deed control plaintiffs' cause of action against the lessee. However, the plaintiffs failed to bring forward a point of error complaining of the trial court's action in granting defendant's motion in limine and in refusing to allow the particular clause of the deed to be introduced into evidence.

It is not reversible error for a trial court to sustain a motion in limine which requires a party to notify the court and advise counsel out of the presence of the jury of his intention to offer certain evidence, so as to permit counsel to make his objection if he wishes in the jury's absence. Before a party can correctly claim error, he must thereafter offer his evidence, secure an adverse ruling from the court, and make a proper bill of exception. Hartford Accident and Indemnity Company v. McCardell, 369 S.W.2d 331, 335 (Tex.Sup. 1963); City of Corpus Christi v. Nemec, 404 S.W.2d 834, 836 (Tex.Civ.App. Corpus Christi 1966, no writ). While it is true that, in this case, plaintiffs objected to the exclusion of the damage clause of the deed, plaintiffs' brief contains no assignments of error and no arguments and authority under any other assignment of error before this Court that the trial court improperly excluded such portion of the deed. Therefore, plaintiffs have waived their right to complain of this ruling. Lout v. Whitehead, 415 S.W.2d 403, 407 (Tex.Sup. 1967); Talbott v. Hogg, 298 S.W.2d 883 (Tex.Civ.App. Amarillo 1957, writ dism'd). See also, Crutcher-Rolfs-Cummings, Inc. v. Ballard, 540 S.W.2d 380, 389 (Tex.Civ.App. Corpus Christi 1976, writ ref'd n.r.e.), cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977); Inman v. Padrezas, 540 S.W.2d 789, 797 (Tex.Civ.App. Corpus Christi 1976, no writ); Whitson Company, Inc. v. Bluff Creek Oil Company, 278 S.W.2d 339, 347 (Tex.Civ.App. Fort Worth 1955, aff'd, 156 Tex. 139, 293 S.W.2d 488 (1956). The scope of our review of plaintiffs' points of error will not include consideration of plaintiffs' other general arguments relating to the damage clause contained in the deed. The materiality of these arguments was conditioned upon the admissibility of the deed's damage clause into evidence. This clause is not properly preserved in the record. Therefore, we have no basis upon which to determine whether it was properly excluded. See Rules 434 and 503, Texas Rules of Civil Procedure and authorities cited thereunder.

Having determined the proper scope of our review, we now consider the merits of plaintiffs' three specific points of error, keeping in mind the familiar rules governing a review of instructed verdict cases. An...