Court of Appeals of Texas, 2012

Wardell Hamilton, Sr. and Wife, Diane Hamilton Barbara A. Harris Rebecca...

Court of Appeals of Texas · Decided May 10, 2012

Opinion

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00378-CV

DAVID J. KANTNER AND WIFE, APPELLANTS SHERI K. KANTNER, JON D.

MATHE, DAVID MOORE, AND

WIFE, SYLVIA MOORE, AND

MICHAEL MORRIS AND WIFE, KIM

MORRIS

CHESAPEAKE ENERGY APPELLEES CORPORATION AND

CHESAPEAKE EXPLORATION,

LLC

------------

FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY ------------

NO. 02-11-00379-CV

BRENT MUSSELMAN AND WIFE, APPELLANTS TERRI MUSSELMAN, JAMIE R.

OLDHAM AND WIFE, JENEE L.

OLDHAM, TOMMY D. OSBORNE

AND WIFE, LORI M. OSBORNE,

AND MARK DEVEN PITT AND WIFE, KRISTIN E. PITT

CHESAPEAKE EXPLORATION, APPELLEES LLC AND CHESAPEAKE ENERGY

CORPORATION

------------

FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY ------------

NO. 02-11-00380-CV

FRANCOIS PELLETIER AND WIFE, APPELLANTS DARIE BERUBE, BILL J. RALSTON

AND WIFE, MADALYN M.

RALSTON, JOSEPH A. SIMON AND

WIFE, KAY L. SIMON,1 AND MARC

G. WILSON AND WIFE, ROSE M.

WILSON

CHESAPEAKE ENERGY APPELLEES CORPORATION AND

CHESAPEAKE EXPLORATION,

LLC

------------

FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY ------------

NO. 02-11-00381-CV

WARDELL HAMILTON, SR. AND APPELLANTS WIFE, DIANE HAMILTON;

BARBARA A. HARRIS; REBECCA

HERNANDEZ; WILLIAM D.

KOLODZIE AND WIFE, MARY M.

KOLODZIE

CHESAPEAKE EXPLORATION, APPELLEES LLC AND CHESAPEAKE ENERGY

CORPORATION

------------

FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY ------------

NO. 02-11-00382-CV

MATTHEW PLATTS, G.L. POTTS APPELLANTS AND WIFE, JENNIFER POTTS,

DEAN A. SCHUERMAN AND WIFE,

GINGER C. SCHUERMAN, AND

JOHN G. WOODS

CHESAPEAKE ENERGY APPELLEES CORPORATION AND

CHESAPEAKE EXPLORATION,

LLC

------------

FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY ------------

NO. 02-11-00383-CV

JAMES M. REAVES AND WIFE, APPELLANTS TERRI E. REAVES; MARK C.

RICHMOND AND WIFE, DEBRA M.

RICHMOND; AND CALVIN R.

WASHINGTON AND WIFE,

MAYRION A. WASHINGTON

CHESAPEAKE EXPLORATION, APPELLEES LLC AND CHESAPEAKE ENERGY

CORPORATION

------------

FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY ------------

NO. 02-11-00384-CV

HOWARD L. EASTER AND WIFE, APPELLANTS GLENDA K. EASTER, GARY L.

ELLIOTT AND WIFE, KAYE T.

ELLIOTT, JERRY D. FUSELIER

AND WIFE, RHONDA M.

FUSELIER, AND DAVID G.

GARDNER AND WIFE, DONNA

GARDNER

CHESAPEAKE ENERGY APPELLEES CORPORATION AND

CHESAPEAKE EXPLORATION,

LLC

------------

FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY ------------

NO. 02-11-00385-CV

JERRY L. SIMMANK, JR.; APPELLANTS RICHARD D. WILSON AND WIFE,

MARY D. WILSON; AND CARL E.

YOUNGBLOOD AND WIFE,

JENNIFER M. YOUNGBLOOD

CHESAPEAKE EXPLORATION, APPELLEES LLC AND CHESAPEAKE ENERGY

CORPORATION

------------

FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY ------------

NO. 02-11-00386-CV

DAVID D. DEES AND WIFE, APPELLANTS SARAH M. DEES, JOHN ROBERT

GRANT AND WIFE, BRENDA J.

GRANT, ROBBIE GRIGGS, JR.

AND WIFE JANICE T. GRIGGS,

AND THOMAS CHARLES

HASENBECK AND WIFE MARY

JOHNSON HASENBECK

CHESAPEAKE ENERGY APPELLEES CORPORATION AND

CHESAPEAKE EXPLORATION,

LLC

------------

FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY ------------

NO. 02-11-00387-CV

JOHN C. BRIGHT AND WIFE APPELLANTS HEATHER M. BRIGHT; LANDON G.

COX, JR. AND WIFE, PATRICIA M.

COX; MERAL O. CRAWFORD;

FREDERICK EARL DAVIS AND

WIFE, ELLEN J. DAVIS

CHESAPEAKE EXPLORATION, APPELLEES LLC AND CHESAPEAKE ENERGY

CORPORATION

------------

FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY ------------

NO. 02-11-00388-CV

RIC A. ALEXANDER AND WIFE, APPELLANTS

JILL R. ALEXANDER, ELAINE

ANDERS, FRANK ANDREWS AND

WIFE, LYNDA L. ANDREWS,

MURIEL B. BROOKS AUTHER,

DALE C. BAKER AND WIFE, SHARI

D. BAKER, DANNY E. BRAWNER

AND WIFE, MARY ALICE

BRAWNER, MELISSA LOU

BROWN, SAM O. BRUCE, DAVID

E. BRYANT AND WIFE, JANET L.

BRYANT, JERRY ALLEN BURNS

AND WIFE, ELAYNE RENEE

BURNS, LIONEL H. CANTU AND

PAULA A. CANTU, DAVID NATHAN

CHERNOW AND WIFE, TANYA E.

CHERNOW, BRYAN B. CORNISH

AND WIFE, CHERYL A. CORNISH,

JOHN D. COSTA AND WIFE, JULIE

A. COSTA, TANYA HYNSON

CROCKETT, DWAYNE DANIEL

AND WIFE, SHAWNA DANIEL,

RICHARD B. DARMON, JR. AND

WIFE, CYNTHIA L. DARMON,

DANIEL G. DARWIN AND WIFE,

GAYLE E. DARWIN, SALAM H.

DAVID AND WIFE, WADDELL

DAVID, JAMES HENRY DONOVAN

AND WIFE, CAROL ANNETTE

DONOVAN, THOMAS J. DUCOTE

AND WIFE, MITZI T. DUCOTE,

DAVID GEORGE DUMAN AND

WIFE, ANDREA JANE DUMAN,

GAYLE T. EUBANKS, DOUGLAS

FORD AND WIFE, DELOIS FORD,

RICKY D. FREE AND WIFE,

SHARON D. FREE, CASEY L.

GLENDENNING AND WIFE,

SUSAN S. GLENDENNING,

MICHAEL C. HABBESTAD AND

WIFE, SHAWNETTE C.

HABBESTAD, MICHAEL HALL AND

WIFE, SADIE HALL, JOHN TODD

HAWKINS AND WIFE, SHANNON

K. HAWKINS, EDWIN C. HELLER

AND WIFE, DONNA L. HELLER,

MICHAEL EUWANE HELM,

RANDALL S. HENDRICKSEN AND

WIFE, LISA L. HENDRICKSEN,

BILLY JACK HINDS AND WIFE,

FAYE HINDS, JAMES R. HUNT, III

AND WIFE, DENISE S. HUNT,

RICKY HUTTO AND WIFE, DEBRA

HUTTO, JOHN H. JACOBSON AND

WIFE, MARY E. JACOBSON, TIM

JOHNS AND WIFE, BRENDA

JOHNS, PAUL MARCUS JONES

AND WIFE, CAROLYN MARY

JONES, AND THE LURA JONES

TRUST

CHESAPEAKE ENERGY APPELLEES CORPORATION AND

CHESAPEAKE EXPLORATION,

LLC

------------

FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY ------------

NO. 02-11-00389-CV

PHILIP R. KASTNER AND WIFE, APPELLANTS LAURA H. KASTNER; PATRICK

LANG; ARTHUR L. LAXSON AND

WIFE, SANDRA L. LAXSON; LEOLA

SHARONA LEWIS; TIMOTHY

LYNCH AND WIFE, RENETTE

LYNCH; STEVEN L. MADSEN AND

WIFE, LAURA E. MADSEN;

CHARLES MARMOLEJO AND

WIFE, ROSA VELIA MARMOLEJO;

JASON R. MENDOZA; STEPHEN

MICHLER; MARVEL BROWN;

DAVID ALAN NIXON AND WIFE,

DEBORAH NIXON; JEFFREY RAY

OAKLEY AND WIFE, TARA ANN

OAKLEY; TIMOTHY J. O’REILLY

AND WIFE, MELISSA K. O’REILLY;

LARRY W. PERMANN AND WIFE,

GERTRUDE M. PERMANN;

WILLIAM DAVID PHILLIPS AND

WIFE, CYNTHIA M. PHILLIPS;

DAVID ALAN RAMSEY AND WIFE,

DEBRA LYNN RAMSEY; JAMES S.

ROLLER, JR. AND WIFE, ROBIN L.

ROLLER; FOUAD SAADE AND

WIFE, SANDRES GHANTOUS;

RAJA SAADE AND WIFE, GUITTA

SAADE; NOUHAD SAADE; RANDY

SEYLER; JOHN EDWARD SHAW

AND WIFE, MELISSA WHORTON

SHAW; MICHAEL P. SHERMAN

AND WIFE, MELISSA D.

SHERMAN; MARK A. SMITH AND

WIFE, ELLA L. SMITH; JERRY

WAYNE SMITH AND WIFE,

CATHERINE HOUSE SMITH;

WILLIAM J. STONE AND WIFE,

ALICE B. STONE; ARLY SURPRIS

AND WIFE, PASCALE BARLATIER-

SURPIS; STEVEN R. TATE AND

WIFE, DEONNAH S. TATE;

RONALD C. TAYLOR AND WIFE,

TERRI S. TAYLOR; RONALD L.

TOVSEN AND WIFE, MARTHA J.

TOVSEN; RICK TOWNZEN AND

WIFE, LEE ANNE TOWNZEN;

RICKY L. TRUITT AND WIFE,

CYNTHIA A. TRUITT; MICHAEL R.

UNDERHILL AND WIFE, VICKY L.

UNDERHILL; KEN L. VAUGHAN

AND WIFE, PHYLLIS A. VAUGHAN;

ROBERT J. WALKER AND WIFE,

KERRY E. WALKER; ALEX D.

WAYNE AND WIFE, KAREN L.

WAYNE; RICHARD A. WEBER AND

WIFE, DENISE A. WEBER; MARC

D. WHITE AND WIFE, REIGH E.

WHITE; ARTHUR W. WIKOFF AND

WIFE, GLORIA A. WIKOFF; AND

BRIAN J. WRIGHT

CHESAPEAKE EXPLORATION, APPELLEES LLC AND CHESAPEAKE ENERGY

CORPORATION

------------

FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY ------------

NO. 02-11-00390-CV

SAMUEL V. ALLEN, JR. AND WIFE, APPELLANTS CIGNORAY M. ALLEN, JEFFERY L.

BRANDON AND WIFE, BRENDA T.

BRANDON, BRYAN THOMAS

HILGARDNER AND WIFE,

THERESA SUE HILGARDNER,

JOSE E. RAMOS, SR. AND WIFE,

BETTY J. RAMOS, JAMES M.

WILSON AND WIFE, TANYA L.

WILSON, AND CURTIS EUGENE

WOOD

CHESAPEAKE ENERGY APPELLEES CORPORATION AND

CHESAPEAKE EXPLORATION,

LLC

------------

FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY ------------

MEMORANDUM OPINION2 ------------

Appellants are owners of property in the Deer Creek Estates addition to the City of Crowley, Texas who possessed unleased mineral interests in their property. In 2007 or early 2008, to facilitate the negotiation of natural gas and mineral leases en masse for Deer Creek Estates residents, a Deer Creek Estates Residents Oil & Gas Lease Committee (the Committee) was formed. Appellants argue that eventually, a contract was negotiated between the Committee and Appellees Chesapeake Energy Corporation and Chesapeake Exploration, LLC (collectively, Chesapeake). Appellants claim that two documents form the contract between the Committee and Chesapeake: the Supplemental Agreement Regarding Gas Lease3 and the “form lease.”4 Appellants concede that the Committee had no authority to bind any Appellant to the terms of the form lease; the form lease acknowledges that no Appellant is required to sign the form lease and provides that each Appellant has the right to negotiate his or her own lease terms. No Appellant signed a lease with Chesapeake. Based on the downturn in the economy, Chesapeake decided to not go forward with leasing minerals in the Deer Creek Estates neighborhood.

Appellants sued. Appellants’ suit claimed that Chesapeake breached the contract5 that purportedly existed between the Committee and Chesapeake by not offering to each Appellant a mineral lease containing the form lease terms––a $27,000 per net mineral acre signing bonus, a 25.25% royalty, a three-year term with no renewal option, and the signing bonus to be paid by a thirty-day bank draft delivered at the time of signing. In their suit, Appellants sought Chesapeake’s specific performance of the unexecuted form leases for each Appellant.

Concerning their breach of contract claims, Appellants acknowledge that they did not execute the Supplemental Agreement Regarding Gas Lease or execute any form lease. Appellants nonetheless claim that they possess standing to sue Chesapeake for breach of contract because they are intended third-party beneficiaries of the purported contract between the Committee and Chesapeake. The trial court granted Chesapeake’s no-evidence and traditional motions for summary judgment against all Appellants. One of the grounds on which the trial court granted summary judgment for Chesapeake on Appellants’ breach of contract claims was that no summary judgment evidence existed that Appellants are third-party beneficiaries of any agreement between the Committee and Chesapeake.

Appellants raise six issues in their appeal challenging the summary judgment granted for Chesapeake on their breach of contract claims. For purposes of our opinion, we assume that the Supplemental Agreement Regarding Gas Lease and the form lease together constitute a contract between the Committee and Chesapeake. We therefore need not address Appellants’ first and second issues, including the six subissues set forth in Appellants’ second issue, arguing the existence of the contract. See Tex. R. App. 47.1 (requiring appellate court to address only issues necessary to the disposition of the appeal). Additionally, for purposes of our opinion, we will consider the affidavits of Appellants’ expert registered professional land surveyors, so we need not address Appellants’ third issue claiming that the trial court erred by sustaining objections to these experts’ affidavits. Because we ultimately hold, as set forth below, that Appellants lack standing to assert breach of contract claims against Chesapeake, we also need not address their fifth and sixth issues concerning the statute of frauds. See, e.g., State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993) (recognizing that appellate court must affirm summary judgment if any ground for summary judgment specifically found by the trial court supports summary judgment).

Our disposition of these appeals is controlled by Maddox v. Vantage Energy LLC, No. 02-11-00210-CV, 2012 WL 407269 (Tex. App.––Fort Worth Feb. 9, 2012, pet. filed).6 In Maddox, we held under very similar facts that, although a nonprofit, unincorporated association named Southwest Fort Worth Alliance, or SFWA, negotiated an agreement with Vantage Energy concerning a template uniform oil and gas lease to be used by Vantage for any leases it obtained in the SFWA neighborhoods, the purported contract between Vantage and SFWA did not identify any third-party beneficiaries with sufficient specificity to confer third-party-beneficiary status. 2012 WL 407269, at *3–4. We also held that, even if the purported contract between Vantage and SFWA could be construed as sufficiently identifying third-party beneficiaries, any such beneficiaries nonetheless failed to qualify as third-party beneficiaries because they were neither creditor beneficiaries nor donee beneficiaries. Id. at *5. Consequently, in Maddox, we assumed the existence of a contract between SFWA and Vantage, held that the plaintiffs/appellants lacked third-party- beneficiary status and accordingly lacked standing to assert a breach of any SFWA/Vantage contract, and that plaintiffs/appellants’ breach-of-contract claims should be dismissed.

We assume for purposes of this opinion that a contract existed between the Committee and Chesapeake. Here, like in Maddox, Appellants are not parties to and did not sign the purported contract between the Committee and Chesapeake. Thus here, like in Maddox, Appellants may sue to enforce this purported contract only if they are third-party beneficiaries of it. See id. at *3–4. Here, like in Maddox, Appellants are not specifically named as third-party beneficiaries in the purported contract they seek to enforce. See id. Appellants are not identified by address, nor is any map attached to the purported contract that would identify Appellants by lot numbers or by addresses in Deer Creek Estates.7 No summary judgment evidence exists identifying which Deer Creek Estates property owners possessed unleased mineral interests; counsel conceded during oral argument that around twenty Deer Creek Estate property owners had leased their mineral interests. We pointed out in Maddox that the property owners had not cited and we had not located any Texas case “supporting the proposition that persons who in a contract are unnamed, unidentified by address or by property description, and are unidentifiable by membership in a specifically defined, discrete, limited group can be intended by the contracting parties to be beneficiaries of that contract.” Id. at *4.8 Thus, we hold here, as we did in Maddox, that the purported contract between the Committee and Chesapeake does not sufficiently identify Appellants to enable them to attain third-party-beneficiary status.9 See Maddox, 2012 WL 407269, at *4.

To the extent that, by some stretch, the purported contract between the Committee and Chesapeake could be construed as specifically identifying these particular Appellants, the summary judgment evidence nonetheless conclusively establishes that Appellants are not donee beneficiaries of any contract between the Committee and Chesapeake.10 Appellants’ position is that they are donee beneficiaries because Chesapeake’s offer to lease their minerals as set forth in the purported contract was a pure donation to them; Appellants’ counsel explained during oral argument his theory that the offer itself, apart from any acceptance by Appellants, “had value” and caused Appellants to attain donee third-party-beneficiary status. But Appellants have cited no case law, and we have located none, supporting the proposition that an offer, absent any acceptance of the offer, has value. Moreover, recovery of the value of the offer independent of any acceptance is not the relief Appellants seek; they seek specific performance by Chesapeake of the unexecuted form lease containing the provisions for a $27,000 per net mineral acre signing bonus, a 25.25% royalty, a three-year term with no renewal option, and the signing bonus to be paid by a thirty-day bank draft delivered at the time of signing. Thus, Appellants are not as a matter of law donee beneficiaries because the performance allegedly promised by Chesapeake that Appellants seek specific performance of––the offer and execution of a lease in accordance with the terms of the form lease––will, when rendered, not come as a pure donation but will be made in exchange for the lease of Appellants’ mineral rights. See id. at *5.

The summary judgment evidence conclusively establishes that Appellants are not third-party beneficiaries of any contract between the Committee and Chesapeake both because Appellants are not sufficiently identified to attain third- party-beneficiary status and because Appellants are not donee beneficiaries of any contract between the Committee and Chesapeake and do not claim to be creditor beneficiaries.

Having addressed Appellants’ fourth issue, the only issue necessary for the disposition of this appeal in light of our assumption that a contract existed between the Committee and Chesapeake and in light of our inclusion of Appellants’ expert surveyors’ reports in our review of the summary judgment evidence, we hold that Appellants lack standing to assert breach of contract claims against Chesapeake. We render judgment dismissing Appellants’ breach of contract claims against Chesapeake.

SUE WALKER JUSTICE PANEL: WALKER, MCCOY, and GABRIEL, JJ.

DELIVERED: May 10, 2012

1 Kay L. Simon was named as an appellant in the notice of appeal, but she had previously nonsuited her claims against Appellees. Therefore, we dismiss her appeal for want of jurisdiction. See Motor Vehicle Board of the Tex. Dep't of Transp. v. El Paso Indep. Auto. Dealers Ass'n, Inc., 1 S.W.3d 108, 110 (Tex. 1999); Preston v. Am. Eagle Ins. Co., 948 S.W.2d 18, 21 (Tex. App.—Dallas 1997, no writ). 2 See Tex. R. App. P. 47.4. 3 The Supplemental Agreement Regarding Gas Lease is a six-paragraph document signed by Chesapeake and by Matthew B. Platts as “committee member” for the Committee. 4 The “form lease” is a template; it contains blanks for the date of execution, for the name of the Lessor, for the address of the property, for the gross acreage, and for the signatures of the parties. 5 Appellants asserted other causes of action against Chesapeake as well, and the trial court granted summary judgment for Chesapeake on all of Appellants’ claims. On appeal, Appellants challenge only the summary judgment granted on their breach of contract claims; thus we need not, and do not, address the trial court’s summary judgments on Appellants’ other claims. 6 See also Eastern Express, LP v. XTO Energy, Inc., Nos. 02-10-00395-CV, 02-10-00396-CV, 02-10-00397-CV, 2012 WL 1059080, at *3 (Tex. App.––Fort Worth Mar. 29, 2012, no pet. h.) (mem. op.) (applying Maddox to similar facts). 7 Although the Supplemental Agreement Regarding Gas Lease purports to have a map attached to it, the parties concede that no map was attached when the document was executed, and the summary judgment record contains no such map attached to the Supplemental Agreement. 8 Appellants point to the case of Basic Capital Mgmt., Inc. v. Dynex Commercial, Inc., 348 S.W.3d 894, 900–01 (Tex. 2011) as supporting this proposition. The factual distinctions between Basic Capital and the present facts are extensive. Perhaps most importantly, in Basic Capital, two real estate trusts were held to be intended third-party beneficiaries of loan agreements when the agreements provided that the lender would loan money to single asset, bankruptcy remote borrowing entities (SABREs) created for the benefit and protection of the lender and when the lender knew the SABREs were wholly owned by the two real estate trusts. Id. Here, the Committee is not a wholly- owned subsidiary of Appellants and in fact lacked the authority to even bind any Appellant to the Supplemental Agreement Regarding Gas Lease or to any form lease. In short, unlike in Basic Capital where the agreement to loan money to the SABREs automatically benefited the owners of the SABREs––the two real estate trusts, here, the purported agreement between the Committee and Chesapeake does not automatically benefit Appellants; Appellants must determine their own lease terms and assign their mineral rights to Chesapeake. 9 We have reviewed the affidavits of registered professional land surveyors W. Thad Murley, III and Douglas L. Authur. Each affidavit states that the surveyor can identify the boundaries of the individual residential lots within Deer Creek Estates. Nothing in those affidavits or the exhibits to those affidavits adds to the identifiability of Appellants in the alleged contract. 10 Appellants’ brief makes no argument that Appellants are creditor beneficiaries of the purported contract between the Committee and Chesapeake; and during oral argument, Appellants’ counsel conceded that Appellants were not creditor beneficiaries, so we need not address Appellants’ creditor beneficiary status. Additionally, the affidavits of the two registered professional land surveyors have no impact on our donee beneficiary analysis.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.