Tucker v. Atlantic Richfield Co., 13-89-093-CV

• Decision Date: 29 March 1990
• Docket Number: No. 13-89-093-CV,13-89-093-CV
• Citation: 787 S.W.2d 555
• Court: Texas Court of Appeals
• Parties: Tommy TUCKER, et al., Appellants, v. ATLANTIC RICHFIELD CO., et al., Appellees.

Page 555

787 S.W.2d 555

Tommy TUCKER, et al., Appellants, v. ATLANTIC RICHFIELD CO., et al., Appellees.

No. 13-89-093-CV.

Court of Appeals of Texas,

Corpus Christi.

March 29, 1990.

Rehearings Overruled April 26, 1990.

David C. Bland, Baker, Brown, Sharman & Parker, Houston, L.L. Duckett, Duckett, Bouligny & Collins, El Campo, for appellants.

Lawrence E. Glenn, Crady, Jewett, Johnston & McCulley, Rollin L. Fischer, Byrnes, Lazor & Fischer, Houston, Thomas A. Albright, Richard P. Marshall, Jr., Scott, Douglass & Luton, Austin, for appellees.

Before NYE, C.J., and SEERDEN and DORSEY, JJ.

OPINION

NYE, Chief Justice.

By a December 4, 1979 lease purchase agreement, Jon Nelson assigned to Atlantic Richfield Company (ARCO) the deep rights to the "Nelson leases," which consist of several separate leases described therein, including lease number five, the Davidson Lease, which is presently in dispute, and lease number eleven, the Cameron-Duncan Lease. The lease purchase agreement, however, incorrectly specified the depth which was to separate Nelson's interests from ARCO's interests.

A subsequent letter agreement dated March 31, 1980 purported to amend the original lease purchase agreement under the following terms:

This letter is intended to clarify our Lease Purchase Agreement and, specifically, the acquisition of the Cameron Duncan, et al., Lease, No. 11 per the above-captioned Lease Purchase Agreement.

Upon your successful amending of the Cameron Duncan, et al., Lease [an amendment which was made and which has no relevance], you will assign to Atlantic all rights below 150 feet below the base of the Yegua formation, which point is identified on the induction electric log of the Hanson No. 1 Duncan Well located in the Charles Boyd Survey, A-578, Wharton County, Texas, at a depth of 7,838 feet below the surface. [all rights below 7988 feet--the original deep rights, less the rights that are presently in dispute.]

Nelson signed this letter agreement on April 1, 1980. Production was later obtained between the disputed depths on the Davidson Lease.

Appellants filed suit on May 5, 1987 for a declaratory judgment that ARCO has no rights to the disputed depths on the Davidson Lease, and for a reformation of the original agreement to correctly identify the intended separation point. ARCO moved for summary judgment on the ground that the action for reformation was barred by limitations and that the letter agreement violated the statute of frauds. The trial court granted summary judgment in favor of ARCO, from which appellants bring the present appeal.

By a single point of error, appellants contend the trial court erred in granting summary judgment favorable to appellees. The movant for summary judgment bears the burden of showing that no genuine issue of material fact exists and that movant is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). In deciding whether a disputed material fact issue exists to preclude summary judgment, evidence favorable to the non-movant will be accepted as true. Every reasonable inference will be indulged in the nonmovant's favor and any doubts resolved in its favor. The question on appeal, as well as in the trial court, is not whether the summary judgment proof raises a fact issue with reference to the essential elements of a plaintiff's claim or cause of action, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of fact concerning one or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970).

In considering this summary judgment, appellees argue that we should not consider David C. Bland's affidavit because of the lack of an acknowledgment. Bland, an attorney for appellants, gave an affidavit stating, in relevant part, that ARCO did not deny appellants' claims until December 19, 1986. This affidavit, however, does not contain Bland's notarized signature. Appellants acknowledge the affidavit's deficiency, but argue both waiver, and that, even if invalid, the affidavit is unnecessary to support their claims.

An "affidavit" is defined as "a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office." Tex.Gov't Code Ann. § 312.011 (Vernon 1988). Without the notarization, Bland's unsworn statement is not an affidavit and is not competent summary judgment proof. Trimble v. Gulf Paint & Battery, Inc., 728 S.W.2d 887, 889 (Tex.App.--Houston [1st Dist.] 1987, no writ). While it is true that purely formal deficiencies in an affidavit can be waived if not raised at the trial court level, Tex.R.Civ.P. 166a(e), the absence of a jurat is substantive, and not a "purely formal defect." This cannot be waived just by failing to bring it to the trial court's attention. Trimble, 728 S.W.2d at 889. Nevertheless, we find from the record that appellants have presented sufficient summary judgment evidence without Bland's affidavit to raise a fact issue regarding their cause of action.

Appellees' motion for summary judgment alleges that in order for appellants to obtain relief, they must first acquire title to the leasehold where the well was completed. According to appellees, appellants can accomplish this only through reformation of the January 14, 1980 assignment. ¹ Appellees contend that, as a matter of law, reformation of the assignment is barred by the statute of limitations and the statute of frauds. We disagree.

The summary judgment order does not indicate whether the trial court relied on the statute of frauds or the statute of limitations when granting the summary judgment. When a summary judgment order does not state the grounds upon which it is granted, a party appealing from the order must show that each of the independent arguments alleged in the motion are insufficient to support the trial court's summary judgment order. McCrea v. Cubilla Condominium Corp., N.V., 685 S.W.2d 755, 757 (Tex.App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.).

The defenses of statute of frauds and statute of limitations are affirmative defenses. Tex.R.Civ.P. 94. When a defendant moves for a summary judgment based on an affirmative defense, its burden is to prove conclusively all elements of the affirmative defense as a matter of law such that there is no genuine issue of material fact. Montgomery v. Kennedy, 669 S.W.2d 309, 310-311 (Tex.1984). The movant defendant must come forward with summary judgment evidence with respect to each element of the affirmative defense. Nichols v. Smith, 507 S.W.2d 518, 520 (Tex.1974). Unless the movant conclusively establishes the affirmative defense, the non-movant plaintiff has no burden in response to a motion for summary judgment filed on the basis of an affirmative defense. Torres v. Western Casualty and Surety Co., 457 S.W.2d 50, 52 (Tex.1970). If a movant establishes an affirmative defense which would bar the suit as a matter of law, the nonmoving party must then adduce summary judgment proof raising a fact issue in avoidance of the affirmative defense, for example, facts which would bring the matter within an exception or defense to the movant's affirmative defense. Palmer v. Ensearch Corp., 728 S.W.2d 431, 435 (Tex.App.--Austin 1987, writ ref'd n.r.e.).

Appellees contend that appellants' suit for reformation was barred by the four-year statute of limitations. Enforcement of any equitable right to reformation of an agreement is barred by the four-year statute of...