Lightning Oil Company v. Anadarko E&P Onshore LLC Fka Anadarko E&P Company, LP

ACCEPTED
04-14-00903-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
4/1/2015 12:46:47 PM
KEITH HOTTLE
CLERK

NO. 04-14-00903-CV

FOURTH DISTRICT COURT OF APPEALS FILED IN
SAN ANTONIO, TEXAS 4th COURT OF APPEALS
SAN ANTONIO, TEXAS
04/1/2015 12:46:47 PM
KEITH E. HOTTLE
LIGHTNING OIL COMPANY, Clerk

Appellant,

v.

ANADARKO E&P ONSHORE, LLC
f/k/a ANADARKO E&P COMPANY, LP,
Appellee.

On Appeal from Cause No. 14-01-12171-DCVAJA
365th Judicial District Court, Dimmit County, Texas
Honorable Elma Salinas Ender, Visiting Judge, Presiding

APPELLEE'S BRIEF

Shayne D. Moses Donato D. Ramos
State Bar No. 14578980 State Bar No. 16508000
smoses@mph-law.com dondramos@yahoo.com
David A. Palmer Donato D. Ramos, Jr.
State Bar No. 00794416 State Bar No. 24041744
dpalmer@mph-law. com donatoramosjr@ddrlex.com
Timothy D. Howell LAW OFFICES OF
State Bar No. 24002315 DONATO D. RAMOS, LLP
thowell@mph-law.com 6721 McPherson Road
MOSES, PALMER & HOWELL, L.L.P. P.O. Box 452009
309 West 7th Street, Suite 815 Laredo, Texas 78045
Fort Worth, Texas 76102 9561722-9909
817/255-9100 956/727-5885 (Fax)
817/255-9199 (Fax)

ATTORNEYS FOR APPELLEE

ORALARGUMENTREQUESTED
 IDENTIFICATION OF PARTIES AND COUNSEL OF RECORD

Appellant: Lightning Oil Company ("Lightning")

Appellant's Counsel: Bruce K. Spindler
John W. Petry
Stephen J. Ahl
LANGLEY & BANACK, INC.
Trinity Plaza II, Suite 900
745 East Mulberry Avenue
San Antonio, Texas 78212

Appellee: Anadarko E&P Onshore, LLC
f/k/a Anadarko E&P Company, LP
("Anadarko")

Appellee's Counsel: Shayne D. Moses
David A. Palmer
Timothy D. Howell
MOSES, PALMER & HOWELL, L.L.P.
309 W. 7th Street, Suite 815
Fort Worth, Texas 76102

Donato D. Ramos
Donato D. Ramos, Jr.
LAW OFFICES OF
DONATO D. RAMOS, LLP
6721 McPherson Road
P.O. Box 452009
Laredo, Texas 78045

11
 TABLE OF CONTENTS
Page No.
IDENTIFICATION OF PARTIES AND COUNSEL OF RECORD ........................ ii

TABLE OF CONTENTS .......................................................................................... iii

INDEX OF AUTHORITIES ..................................................................................... v

RECORD REFERENCES ......................................................................................... x

STATEMENT OF THE CASE ................................................................................. l

REQUEST FOR ORAL ARGUMENT ..................................................................... 2

ISSUE PRESENTED ................................................................................................ 3

STATEMENT OF FACTS ........................................................................................ 4

SUMMARY OF THE ARGUMENT ...................................................................... 20

ARGUMENT AND AUTHORITIES ..................................................................... 21

A. No subswface trespass has occurred or will occur ........................... 21

1. The Mineral Estate is a bundle of rights, not a
physical space ........................................................................... 21

11. None of the rights associated with the Mineral Estate
have been damaged or are in jeopardy of being damaged ....... 36

B. Lightning's consent is not necessary .................................................. 45

C. Additionally and/or alternatively, Anadarko is entitled to a
no-evidence summary judgment ......................................................... 52

1. Trepass ...................................................................................... 53

11. Tortious Interference ................................................................ 54

111. Injunctive relief ........................................................................ 55

iii
PRAYER ................................................................................................................. 56

CERTIFICATE OF COMPLIANCE WITH WORD LIMIT .................................. 58

CERTIFICATE OF SERVICE ................................................................................ 58

APPENDIX ............................................................................................................. 59

iv
 INDEX OF AUTHORITIES

Cases Page No.

A.B.F. Freight Sys., Inc. v. Austrian Import Serv., Inc., 798 S.W.2d
606 (Tex. App. - Dallas 1990, writ denied) ................................................. 40

ACS Investors v. McLaughlin, 943 S.W.2d 426 (Tex. 1997) .................................. 54

Berry Contracting, Inc. v. Coastal States Petrochemical Co., 635 S.W.2d
759 (Tex. App. - Corpus Christi 1982, writ ref'd n.r.e.) .............................. 40

Birdwell v. Am. Bonding Co., 337 S.W.2d 120 (Tex. App. - Fort Worth
1960, writ refd n.r.e.) .................................................................................... 31

Brown v. Humble Oil & Ref Co., 83 S.W.2d 935 (Tex. 1935) ......................... 38,43

Browning Oil Co., Inc. v. Luecke, 38 S.W.3d 625 (Tex. App. -Austin
2000, pet. denied) .......................................................................................... 38

Burlington Res. Oil & Gas Co., LP v. Lang & Sons Inc., 259 P.3d
766 (Mont. 2011) .......................................................................................... 29

Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002) .................................. 55,56

Chevron Oil Co. v. Howell, 407 S.W.2d 525 (Tex. Civ. App. -Dallas 1966,
writ refd n.r.e.) ......................................................................................... 49,50

Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1
(Tex. 2008) ................................................................................ 26,33,38,42,43

Department ofTransp. v. Goike, 560 N.W.2d 365 (Mich. Ct. App. 1996) ............ 29

Dow Chemical Co. v. Francis, 46 S.W.3d237 (Tex. 2001) .............................. 21,52

Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505
(Tex. 1993) .................................................................................................... 31

Dunn-McCampbell Royalty Interest, Inc. v. Nat'! Park Serv., 630 F.3d
411 (5th Cir. 2011) .................................................................................... 26,28

v
Emeny v. United States, 412 F.2d 1319 (Ct. Cl. 1969) ...................................... 26,27

Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620 (Tex. 2011) ................................... 55

Evanston Ins. Co. v. Legacy ofLife, Inc., 370 S.W.3d 377 (Tex. 2012) ............ 22,34

FPL Farming, Ltd. v. Environmental Processing Systems, L.C., 351 S.W.3d
306 (Tex. 2011) ....................................................................................... 44,45

French v. Chevron US.A. Inc., 896 S.W.2d 795 (Tex. 1995) ................................ 22

Goose Creek Ice Co. v. Wood, 223 S.W. 324 (Tex. Civ. App. -
Galveston 1920, no writ) ............................................................................... 44

Greene v. Farmers Ins. Exch., 446 S.W.3d 761 (Tex. 2014) .................................. 32

GulfProd. Co. v. Continental Oil Co., 132 S.W.2d 533 (Tex. 1939) ..................... 27

Hastings Oil Co. v. Texas Co., 234 S.W.2d 389 (Tex. 1950) ............................ 36,37

Humble Oil & Refining Co. v. L & G Oil Co., 259 S.W.2d 933
(Tex. Civ. App. - Austin 1953, writ ref d n.r.e.) ..................................... 46,47

Humble Oil & Refining Co. v. West, 508 S.W.2d 812 (Tex. 1974) ........................ 26

Lightning Oil Co. v. Anadarko E&P Onshore, No. 04-14-00152-CV,
2014 Tex. App. LEXIS 11844 (Tex. App. - San Antonio
Oct. 29, 2014, pet. filed) ................................................................................. 4

Lone Star Gas Co. v. Murchison, 353 S.W.2d 870 (Tex. Civ. App. -
Dallas 1962, writ ref'd n.r.e.) ........................................................................ 30

Maranatha Temple, Inc. v. Enterprises Prods. Co., 833 S.W.2d 736
(Tex. App. - Houston [I st Dist.] 1992, writ denied) ................................ 21,53

Marcus Cable Associates, L.P. v. Krohn, 90 S.W.3d 697 (Tex. 2002) .................. 35

McAlister v. Eclipse Oil Co., 98 S.W.2d 171 (Tex. 1936) ...................................... 34

vi
Natural Gas Pipeline Co. ofAm. v. Pool, 124 S.W.3d 188 (Tex. 2003) ................ 29

Oryn Treadway Sheffield, Jr., Trust v. Consolidation Coal Co., 819
F.Supp.2d 625 (W.D. Va. 2011), ajf'd, 497 Fed. Appx. 318
(4th Cir. 2012) ................................................................................................ 29

Phillips Petroleum Co. v. Cowden, 241F.2d586 (5th Cir. 1957) ........................... 42

Phillips Petroleum Co. v. Cowden, 256 F.2d 408 (5th Cir. 1958) ........................... 42

Pomposini v. T. W Phillips Gas & Oil Co., 580 A.2d 776
(Pa. Super. Ct. 1990) ..................................................................................... 29

Prize Energy Res., L.P. v. CliffHoskins, Inc., 345 S.W.3d 537
(Tex. App. - San Antonio 2011, no pet.) ...................................................... 53

Prudential Ins. Co. ofAm. v. Financial Review Servs., Inc., 29 S.W.3d
74 (Tex. 2000) .......................................................................................... 39,54

Railroad Comm 'n of Texas v. Manzie!, 361 S.W.2d 560 (Tex. 1962) .......... 32,33,35

Roberts v. US. Home Corp., 694 S.W.2d 129 (Tex. App. - San Antonio
1985, no writ) ................................................................................................ 40

Springer Ranch, Ltd. v. Jones, 421 S.W.3d 273 (Tex. App. -
San Antonio 2013, no pet.) .................................................. 23,24,25,26,27,35

Stephens County v. Mid-Kansas Oil & Gas Co., 254 S.W.2d 290
(Tex. 1923) .................................................................................................... 34

Sun Oil Co. v. Whitaker, 424 S.W.2d 216 (Tex. 1968) ........................................... 55

Sutton v. Green, No. 14-01-01043-CV, 2002 Tex. App. LEXIS
4983 (Tex. App. -Houston [14th Dist.] Jul. 11, 2002, no pet.) .................... 31

Tawes v. Barnes, 340 S.W.3d 419 (Tex. 2011) ....................................................... 51

Texas Co. v. Daugherty, 176 S.W. 717 (Tex. 1915) .......................................... 29,34

vii
Texas Dep 't ofState Health Servs. v. Balquinta, 429 S.W.3d 726
(Tex. App. -Austin 2014, pet. dism'd) ........................................................ 55

Texas Pipe Line Co. v. Hildreth, 225 S.W. 583 (Tex. Civ. App. -
Fort Worth 1920, no writ) ............................................................................. 40

Valenzuela v. Aquino, 853 S.W.2d 512 (Tex. 1993) ............................................... 55

Villarreal v. Grant Geophysical, Inc., 136 S.W.3d 265 (Tex. App. -
San Antonio 2004, pet. denied) ..................................................................... 43

Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849 (Tex. 2000) .............................. 40

Watkins v. Certain-Teed Products Corp., 213 S.W.2d 981 (Tex. Civ.
App. -Amarillo 1950, no writ) ..................................................................... 37

Wilen v. Falkenstein, 191 S.W.3d 791 (Tex. App. - Fort Worth 2006,
pet. denied) .................................................................................................... 53

Statutes and Other Sources

31-A TEX.JUR. 27 ..................................................................................................... 30

Owen L. Anderson, Lord Coke, the Restatement and Modern
Subsurface Trespass Law, 6 TEX. J. OIL, GAS & ENERGY
LAW 203 (2011) ............................................................................................. 48

Owen L. Anderson, Subsurface "Trespass": A Man's Subsuiface
Is Not His Castle, 49 WASHBURN L.J. 247 (2010) ........................................ 49

Restatement (Second) of Torts§ 822 cmt. G (1997) .............................................. 44

TEX. CIV. PRAC. & REM. CODE§ 65.012(a) ........................................................ 39,55

TEX. R. Crv. P. 166a(i) ............................................................................................. 52

TEX. R. EVID. 201 ...................................................................................................... 5

viii
H. Philip Whitworth & Davin McGinnis, Square Pegs, Round Holes:
The Application and Evolution of Traditional Legal and Regulatory
Concepts for Horizontal Wells, 7 TEX. J. OIL, GAS & ENERGY
LAW, 177 (2011/2012) ................................................................................... 48

ix
 RECORD REFERENCES

Record citations in this brief are to the Clerk's Record (CR) and the

Supplemental Clerk's Record (1 Supp. CR).

Testimony and exhibits from the temporary injunction hearing are also

addressed because they were made a part of the summary judgment record.

However, the portions of the transcript and exhibits that were attached to

Anadarko's motion for summary judgment were requested to be included,1 but

were omitted, from the Clerk's Record. Anadarko has requested that the Clerk's

Record be supplemented to include the missing items. In the meantime, citations

to testimony and exhibits from the temporary injunction hearing that were made a

part of the summary judgment record but inadvertently omitted from the Clerk's

Record are cited as "Temporary Injunction Transcript" and "Temporary Injunction

Exhibit". Once the Clerk's Record is supplemented, Anadarko requests leave to

file a corrected brief with citations to the same.

1
CR 813. In addition to Lightning's Request for Clerk's Record, Anadarko filed a Supplemental
Designation of Clerk's Record clarifying that its motion for summary judgment and other items
were to be included in the Clerk's Record. Anadarko did so because the titles or dates of certain
items were misidentified in part in Lightning's request. It appears Anadarko's Supplemental
Designation of Clerk's Record was also omitted from the Clerk's Record despite Anadarko's
request that it be included.

x
 STATEMENT OF THE CASE

This is an appeal of an order denying summary judgment for Lightning and

granting summary judgment for Anadarko (the "Order"). 2 By agreement of the

parties, the trial court severed the Order from "the remaining claims" (which

consisted only of Anadarko's claim for attorney fees and costs) so it could be

immediately appealed. 3 This appeal arises out of Lightning's claim, meritless

though it is, for subsurface trespass on a mineral estate. Lightning asserts causes

of action against Anadarko for trespass and tortious interference with contract, and

seeks declaratory and injunctive relief. Lightning is the lessee of the mineral estate

(the "Mineral Estate") underlying approximately 3,251.53 surface acres (the

"Surface Estate") in Dimmit County, Texas. The gravamen of Lightning's claims

is that Anadarko, with the permission of the owner of the Surface Estate, Briscoe

Ranch, Inc. ("Briscoe"), plans to utilize a location on the Surface Estate to drill,

operate and produce one or more horizontal wells that will traverse - or m

Lightning's words merely "go through" 4 - some of the subsurface lands

surrounding a portion of the Mineral Estate, but not produce from the Mineral

Estate. Instead, Anadarko's proposed wells will produce only from an adjacent

mineral estate owned by Anadarko.

2
CR 804.
3
CR 805.
4
Lightning's Brief, at 7.
 REQUEST FOR ORAL ARGUMENT

Anadarko respectfully requests oral argument. Anadarko believes oral

argument will significantly aid the Court's decision process and is in order in light

of the gravity of the legal issues involved and the potential impact of this case on

the oil and gas industry.

2
 ISSUE PRESENTED

The owner of the Surface Estate consents to Anadarko' s proposed activities,

none of which will cause damage to or otherwise interfere with the bundle of rights

associated with Lightning's Mineral Estate. Anadarko's wellbores will bottom on

and produce solely from a mineral estate owned by Anadarko. They will merely

pass through a part of the subsurface mass - which surrounds a portion of the

Mineral Estate but is part of the Surface Estate - and will be incapable of

producing any minerals directly from Lightning's Mineral Estate. Under these

circumstances, did the trial court correctly deny summary judgment for Lightning

and grant a traditional and/or no-evidence summary judgment for Anadarko on

Lightning's causes of action for trespass and tortious interference as well as on

Lightning's request for injunctive relief premised upon a trespass?

3
 STATEMENT OF FACTS

1. This appeal is the latest in Lightning's misguided, albeit tireless,

attempt to show a subsurface trespass. After the trial court initially granted an ex

parte temporary restraining order against Anadarko, 5 it conducted an evidentiary

hearing and denied Lightning's request for a temporary injunction. 6 Lightning

filed a Motion to Reconsider and Grant Application for Temporary Injunction,7 as

well as an Amended Motion to Reconsider and Amended Motion for Injunctive

Relief and Motion to Grant Application for Temporary Injunction and Request for

the Court to Consider Additional Evidence, 8 which the trial court also denied. 9

Lightning then sought an accelerated appeal, in which this Court affirmed the trial

court's denial of Lightning's request for a temporary injunction. 10 As part of its

accelerated appeal, Lightning filed a Motion for Temporary Orders to Preserve

Jurisdiction and Rights Pending Appeal that was also denied by this Court. On the

same day it filed its brief in this appeal, Lightning filed a Petition for Review

(which remains pending) with the Texas Supreme Court in which it challenges this

5
CR 12.
6
CR 31.
7
CR 32.
8
CR 250.
9
CR 269.
10
Lightning Oil Co. v. Anadarko E&P Onshore, No. 04-14-00152-CV, 2014 Tex. App. LEXIS
11844 (Tex. App. - San Antonio Oct. 29, 2014, pet. filed).

4
Court's disposition of its accelerated appeal. 11 Lightning has now been denied

summary judgment by the trial court, which correctly granted summary judgment

for Anadarko. 12 This appeal followed. Thus, by bringing this appeal, Lightning

seeks to take no less than its seventh bite at the apple.

2. With this procedural background in mind, Anadarko turns to the facts.

The statement of facts in Lightning's brief is only partially correct and in some

respects is patently wrong. The facts relevant to this appeal can be summarized

more accurately as follows.

3. The parties' respective leasehold interests and acreage positions are

undisputed and are accurately identified in Lightning's brief. 13 However,

Lightning inaccurately characterizes this as "a subsurface trespass case." 14 It is

not, no matter how many times or in how many courts Lightning attempts to

portray it as one. Anadarko has drilled no wells through Lightning's Mineral

Estate at this juncture; thus, no trespass could have occurred. Moreover, as shown

below, Lightning's trespass argument is based on the faulty premise that its

Mineral Estate encompasses a particular space as opposed to a bundle of rights. In

11
Anadarko asks this Court to take judicial notice of Lightning's Motion for Temporary Orders
to Preserve Jurisdiction and Rights Pending Appeal filed in this Court and its Petition for Review
filed in the Texas Supreme Court. TEX. R. Evm. 201. Neither document is included in the
Clerk's Record as they were not filed with the trial court.
12
CR 804.
13
Lightning's Brief, at 1-2.
14
Lightning's Brief, at viii.

5
short, no trespass has occurred or will occur both as a matter of fact and a matter of

law.

4. As it has done at each stage of this case, Lightning takes great liberties

with the "facts" actually contained in the record. In many instances, Lightning

continues to advance the same mischaracterizations of the record despite the fact

Anadarko has repeatedly pointed out they are inaccurate. Still, Anadarko has no

choice but to address them - as it has repeatedly done in its briefing in prior

proceedings - so this Court is not left with the wrong impression.

5. For instance, Lightning writes that by granting summary judgment for

Anadarko the trial court "essentially ruled that Anadarko could go forward with its

plan to drill 65 to 75 oil-and-gas wells through Lightning's mineral estate." 15 In

truth, Anadarko's current plans involve only one drill site on the Surface Estate

and no more than five wells. 16 The portions of Anadarko's planned wellbore(s)

that will traverse the area surrounding part of Lightning's Mineral Estate will be

cased and incapable of draining hydrocarbons. 17 In sum, Anadarko will produce

only those hydrocarbons it has a right to produce from its own adjacent mineral

estate.

15
Lightning's Brief, at viii.
16
CR 299; CR 509, at IL 1-2; Temporary Injunction Transcript, at p. 91, II. 13 through p. 92, 1.
17.
17
CR 299, 302.

6
 6. In a related point, Lightning represents that Anadarko claims "it is

unable to operate on the surface of the Chaparral." 18 Later in its brief, Lightning

writes that "Anadarko appears to have now abandoned its argument that it has to

drill through the Cutlass Lease because it cannot drill on the Chaparral." 19

Anadarko has not abandoned any such argument because it never made it. Rather,

it has pointed out - accurately so - that the surface acreage covered by the

Chaparral Wildlife Management Area Lease consists of a state-owned and

managed wildlife sanctuary and public hunting grounds. Thus, it comes as no

surprise that the Chaparral Wildlife Management Area Lease includes surface

restrictions requiring that drill sites "must be planned and authorized by the Land

Manager" and that Anadarko must use offsite locations "when prudent and

feasible." 20 These surface use restrictions are irrelevant to whether a trespass will

occur. However, they are provided for background because they are the reason

Anadarko secured written permission from Briscoe, as the owner of the Surface

Estate, to use a location on the Surface Estate to drill, operate and produce one or

more horizontal wells, the wellbore(s) of which will cross through an area that is

owned by Briscoe, the Surface Estate owner, but produce only from Anadarko's

Chaparral Wildlife Management Area Lease. 21 In addition to the General Land

18
Lightning's Brief, at 4.
19
Lightning's Brief, at 6.
20
CR 301-02, 309; Temporary Injunction Transcript, at p. 85, II. 11-14.
21
CR320.

7
Office, certain members of the Light family who own interests in Lightning also

own interests in the minerals covered by the Chaparral Wildlife Management Area

Lease. 22 That their leases do not contain surface restrictions does not relieve

Anadarko from its obligation to comply with those set forth in the Chaparral

Wildlife Management Area Lease.

7. Lightning suggests there is an agreement for Anadarko to use the

surface of the Chaparral Wildlife Management Area Lease because "Anadarko has

been in possession of a proposed Texas Parks and Wildlife surface-use agreement

for well over two years.'m Anadarko has not signed the proposal because the

parties have not reached an agreement on its terms. Lightning did not and could

not produce evidence that Anadarko has acted improperly by not accepting the

terms and signing the proposal. In fact, the only conclusion that can be reached

from the summary judgment evidence is that Anadarko acted within its rights in

electing not to sign the Texas Parks and Wildlife's proposed surface use

agreement.

8. Lightning also writes that "various oil-and-gas operators have drilled

at least 14 to 19 wells on the surface of the" Chaparral Wildlife Management Area

Lease. 24 The record says nothing about "various" operators having done so; it

22
CR 464, at II. 7-16; Lightning's Brief, at 2.
23
Lightning's Brief, at 5.
24
Lightning's Brief, at 2.

8
merely reflects that wells have been drilled. 25 Regardless, that fact is irrelevant

because the undisputed summary judgment evidence is that "Anadarko has been

unable to secure permission to develop the Chaparral Wildlife Management Area

Lease from the surface directly above it." 26 Moreover, even if it had secured

permission to do so, it would not have been precluded from utilizing Briscoe's

Surface Estate in light of the agreement it reached with Briscoe.

9. Lightning posits that "Anadarko can continue to meet its drilling

obligations pursuant to the terms of the Chaparral Lease ... without accessing the

Chaparral Lease estate through the Cutlass mineral estate" because Anadarko can

simply drill from the Rancho Encantado. 27 This statement is irrelevant because it,

too, has no bearing on the trespass issue. Moreover, it is untrue. In support of this

proposition, Lightning cites the testimony of its owner, 28 Walter Scott Light, at the

temporary injunction hearing. In actuality, Anadarko's counsel informed the trial

court at the hearing that it is "disingenuous to suggest Anadarko could produce

everything from the Rancho Encantado [on] to the Chaparral Wildlife Lease" 29

because "you can't drill long enough laterals to get the entire Chaparral Wildlife

area developed; so you would lose, approximately, 85 percent of the reserves

associated with the Chaparral Wildlife area if you leave this conjunction [sic] in
25
1 Supp. CR 416.
26
CR 302.
27
Lightning's Brief, at 3.
28
CR 462, at II. 13-16.
29
Temporary Injunction Transcript, at p. 26, I. 24 through p. 27, I. 1.

9
place." 30 Anadarko is cognizant that statements by its counsel are not evidence.

However, they are consistent with Mr. Light's admissions on cross-examination in

which he agreed that using the Rancho Encantado's surface would only be a

temporary solution as 85% of the Chaparral Wildlife Management Area's reserves

could not be reached from there:

Q: Now, the two wells you've drilled have laterals of less than
4,000 feet, don't they?

A: Yes. I think so.

Q: Now, Anadarko's proposed laterals you've seen are as much as
8,000 feet?

A: I see that.

Q: So, even if Anadarko was drilling a lateral twice as long as
yours, if it's precluded from using these north and south
locations and only comes from the Rancho Encantado as you
suggested, it's going to lose 85 percent of the production from
the Wildlife Management Area, isn't it?
31
A: If they stop and not get [sic] on the Parks & Wildlife, that is true."

10. Lightning continues the mantra it has used from the outset of this case

that Anadarko's proposed activities will supposedly interfere with its ability to

develop its Mineral Estate. In doing so, Lightning contends that Anadarko's

proposed actions "will adversely affect Lightning's proposed Cutlass West A-5

well" and "will require Lightning to deviate its wells in ways that are not

30
Temporary Injunction Transcript, at p. 29, II. 17-23.
31
Temporary Injunction Transcript, at p. 97, II. 5-18.

10
operationally advisable and will result in substantial cost and damage to

Lightning." 32 These conclusory statements lack support in the summary judgment

evidence. Moreover, they are not "uncontroverted" as Lightning says because they

directly contradict Lightning's prior testimony, which was "I can't quantify what

that cost is right now but there will be added costs." 33 Most importantly, however,

these inconsistent statements have no bearing on whether or not a subsurface

trespass would occur if Anadarko drills from Briscoe's Surface Estate.

11. To support its interference allegation, Lightning also attempts to

invoke conclusory statements in Mr. Light's affidavit that Anadarko's proposed

operations "will cause significant interference with Lightning's planned

development of its mineral estate attributable to the Cutlass Lease and create offset

drilling obligations on the part of Lightning that do not exist today and likely

would not exist if Anadarko drilled its wells on the surface estate attributable to its

own Chaparral Wildlife Management Area lease." 34 These statements, too, are

speculative and directly contradict Mr. Light's testimony at the temporary

injunction hearing. For example, with respect to the pertinent site and wells, Mr.

Light admitted that with respect to his "Proposed Site No. 2, ... [his] planned

wellbore would never encounter any portion of Anadarko's planned wellbores." 35

32
Lightning's Brief, at 9.
33
CR 514, at IL 2-6.
34
Lightning's Brief, at 4.
35
Temporary Injunction Transcript, at p. 91, IL 1-4.

II
In fact, Mr. Light conceded that "with respect to Anadarko's proposed surface

location, there is no way on God's green earth it will interfere with [Lightning's]

proposed Cutlass 3 well . . . ."36 The petroleum engineer who testified on

Lightning's behalf, Gary Bagnall, similarly admitted that "the drilling of those five

wells would not interfere with Lightning drilling their [sic] No. 3 well." 37 Mr.

Bagnall also testified that he knows for a fact that "the Cutlass 3 can be drilled

without any problem from the five proposed wells" and that he "should be able" to

identify and avoid any encounter with Anadarko's wellbore paths. 38

12. The most Lightning's witnesses could muster was a suggestion that

there could potentially be damage if a blowout were to occur and that the five wells

(again, not 65 to 75 wells) Anadarko plans to drill from the surface location in

question could cause Lightning difficulty in drilling a potential "protection well"

that is "on the drawing board." 39 Mr. Light acknowledged that there is only a

"possibility, not a probability" of a casing failure that could harm Lightning's

36
Temporary Injunction Transcript, at p. 92, II. 11-17.
37
CR 507, at I. 22 through CR 508, at I. 2; Temporary Injunction Transcript, at p. 137, I. 25
through p. 138, I. I; Temporary Injunction Transcript, at p. 141, II. 12-16.
38
Temporary Injunction Transcript, at p. 141, II. 12-16; Temporary Injunction Transcript, at p.
142, I. 16 through p. 143, I. 2.
39
CR 505, at II. 6-22; CR 508, at II. 6-14; CR 509, at II. 1-2.

12
Mineral Estate, 40 and Mr. Bagnall testified that the chances of a well control issue

that could damage the formation are miniscule at best. 41

13. Lightning significantly overstates, if not misrepresents, the record by

writing that "[t]o an absolute certainty, Anadarko will bring to the surface

hydrocarbons from the [Mineral Estate]" and, similarly, that "some of the

hydrocarbons [from its Mineral Estate] will be displaced and brought to the

surface" by Anadarko. It cites no evidence for these bold statements, and there is

none. The summary judgment evidence establishes that Anadarko will not

perforate a wellbore while under any land covering Lightning's Mineral Estate;

instead, it will only produce from acreage that underlies the Chaparral Wildlife

Management Area Lease. 42 In addition, the record shows it is industry standard to

accommodate nearby operators and that Anadarko will do so here if and as

reasonably necessary. 43 It also confirms Anadarko intends to comply with all field

rules. 44 Finally, the take points for Anadarko's wells will not vary significantly

based on the surface locations of the wells. The bottom hole locations and

perforations from which production will occur will be substantially the same

regardless of whether the surface location is on the Chaparral Wildlife Area or the

40
Temporary Injunction Transcript, at p. 99, II. 2-7.
41
Temporary Injunction Transcript, at p. 132, II. 13-19; Temporary Injunction Transcript, at p.
142, II. 3-13.
42
CR 299, 302.
43
CR 740.
44
CR 299, 302.

13
Briscoe Surface Estate. Thus, Lightning's claim regarding displaced hydrocarbons

is not only unsupported by the summary judgment evidence, it is incorrect. Thus,

the trial court correctly denied Lightning's request for temporary injunctive relief

based on a finding "that there is no interference with the leaseholder of the Cutlass

lease"45 and later correctly granted summary judgment for Anadarko for that same

reason.

14. Lightning repeats another false allegation it has advanced before,

suggesting that it became aware of Anadarko's desire to use the Surface Estate as a

drill site for production from the Chaparral Wildlife Management Area only after it

discovered stakes marking Anadarko's proposed well locations and "confronted

Anadarko." 46 It does so despite the fact Anadarko has pointed out the inaccuracy

of this allegation every time Lightning has made it. Again, what occurred in this

regard is irrelevant to the trespass issue. However, because Lightning repeats the

allegation, Anadarko will repeat its recitation of the true facts in order to set the

record straight.

15. Anadarko contacted Lightning months before it staked its initial

proposed site and was fully transparent about its plans. 47 This transparency

prompted Lightning to take steps aimed at trying to frustrate those plans and to

45
CR 586, at II. 4-8.
46
Lightning's Brief, at 9.
47
Temporary Injunction Transcript, at p. 82, I. 16 through p. 83, I. 1.

14
create conflicts where none previously existed. 48 Within days after Anadarko

staked a proposed location on the Surface Estate, for example, Lightning for the

first time professed a need to use the same site and staked the same location. 49 Just

prior to the temporary injunction hearing, Lightning rushed to obtain permits to

drill from that site, admittedly for the purpose of presenting evidence to the trial

court at the injunction hearing. 50 Despite Lightning's legal maneuvering and the

fact it was not obligated to do so, Anadarko moved its original planned location to

a different site to accommodate Lightning and to avoid any claim of potential

interference with Lightning's newly professed surface needs.

16. In another effort to put a black hat on Anadarko, Lightning accuses it

of "encourag[ing] Lightning's working-interest partners [sic] to jointly develop the

[Cutlass Lease] acreage on the condition that Lightning and its affiliates sell their

interests in the Cutlass Lease, with Anadarko effectively serving as the operator." 51

This rhetoric, too, is irrelevant. Regardless, Anadarko has previously debunked it,

yet Lightning is undeterred in using it. As confirmed by the summary judgment

evidence, Anadarko did not initiate contact with the working interest owners in the

Cutlass Lease. To the contrary, the first contact was an unsolicited communication

in June 2014 to Anadarko from Alan Dille with Resource Legacy Investments,
48
Temporary Injunction Transcript, at p. 96, 11. 12-16.
49
Id.; Temporary Injunction Transcript, at p. 95, 11. 21-25.
50
Temporary Injunction Transcript, at p. 96, I. 1 through p. 97, I. 4; Temporary Injunction
Anadarko Exhibit 79.
51
Lightning's Brief, at 4.

15
LLC in which Mr. Dille expressed a belief that Anadarko has low, "best in class"

drilling costs and that all working interest owners would likely participate in

pooling their interests with Anadarko if a workable structure could be found. 52

Thus, the truth is that the majority working interest owners in the Cutlass Lease

question Lightning's procedures when compared to those of Anadarko and reached

out to Anadarko, not vice versa.

17. Finally, Lightning identifies what it dubs "The Proprietary Problem,"

in which it suggests that Anadarko's proposed drilling activities will result in a

misappropriation of "detailed confidential proprietary information concerning" the

Mineral Estate, including cuttings, mineral cores and mud logs. 53 There is no

evidence to support such a claim, nor is there any evidence that Anadarko would

not have access to the same data if it drilled from other area locations about which

Lightning could not complain, including those it says Anadarko should utilize.

18. Regardless, this "problem" exists only in Lightning's imagination.

The summary judgment evidence established that Anadarko will perforate its

wellbores for production only under the Chaparral Wildlife Management Area

Lease. 54 Moreover, Anadarko will conduct only minimal testing. For example, it

will utilize a basic gamma ray log and use simple mud gas detection equipment in

52
CR 740, 744.
53
Lightning's Brief, at 10-11.
54
CR299.

16
order to comply with applicable laws and industry standards and to ensure it can

safely and effectively drill its laterals in the Eagle Ford formation and avoid

perforating its wellbores in the area surrounding Lightning's Mineral Estate. 55

Anadarko will not run mud logs. 56 After the first well is drilled from a well pad,

Anadarko intends to run only the gamma ray log from roughly a 7,000-foot depth

(kickoff point) to TD or total depth. 57 Other than assuring the wells are drilled

safely and properly, the information garnered from these basic procedures is of no

real value to Anadarko and will not be detrimental to Lightning. 58 If Anadarko

was seeking information proprietary to Lightning, or intended to produce

Lightning's minerals, it would run a full suite of logs while in the area

encompassing the Mineral Estate. 59 It will not do so because it has no such

intention. 60

19. With the foregoing undisputed facts in mind, Anadarko moved for

summary judgment on each of Lightning's claims on the following traditional

grounds:

(a) no subsurface trespass has occurred or will occur on Lightning's

Mineral Estate as a matter of law;

55
CR 299, 740-41.
s6 Id.
57 Id.
58 Id.
59 Id.
60 Id.

17
 (b) Anadarko's proposed activities are authorized by Briscoe, as the

owner of the Surface Estate, such that Lightning's consent is not

necessary;

(c) Anadarko's proposed activities have not resulted and will not result in

any damage to Lightning or the Mineral Estate;

(d) Anadarko has the right to drill wells from the Surface Estate and is

entitled to a declaration of the same;

(e) Anadarko's actions are justified such that there 1s no tortious

interference; and

(f) Lightning's request for injunctive relief is a remedy, not a cause of

action, to which Lightning is not entitled. 61

20. Alternatively, pursuant to Rule 166a(i) of the Texas Rules of Civil

Procedure, Anadarko moved for summary judgment:

(aa) on Lightning's trespass claim because there is no evidence that:

(I) Anadarko' s proposed activities have injured, or will

injure, Lightning's right to possess the Mineral Estate or

its right or ability to produce minerals therefrom;

(2) Anadarko lacks authority to conduct the proposed

activities; and

61
CR272.

18
 (3) Lightning has standing to complain about Anadarko's

activiti es. 62

(bb) on Lightning's claim for tortious interference because there 1s no

evidence that:

( 1) Anadarko' s proposed activities have proximately caused,

or will proximately cause, any damage to Lightning's

Mineral Estate;

(2) actual damage or loss to Lightning's Mineral Estate has

occurred or will occur as a result of Anadarko's proposed

activities or that Anadarko' s activities will interfere with

any of Lightning's rights in the Mineral Estate;

(3) Lightning has standing to complain about Anadarko's

activities; and

(4) Anadarko' s conduct or proposed conduct is not justified.

21. The trial court granted summary judgment for Anadarko without

specifying the grounds on which it did so. 63 The trial court severed "the remaining

claims" so the Order would become final and appealable. 64 Lightning contends

"[t]hose remaining claims relate to Lightning's cause of action for tortious

62
CR 273.
63
CR 804.
64
CR 805.

19
interference and Anadarko's assertion of affirmative defenses thereto." 65 In

actuality, Lightning's cause of action for tortious interference is subsumed by the

Order because Anadarko moved for summary judgment on that claim 66 and the

trial court granted Anadarko's motion in its entirety. 67 Thus, the only remaining

claim is Anadarko's request for attorney fees and costs pursuant to Chapter 37 of

the Texas Civil Practice and Remedies Code, which is the only claim not disposed

of by the Order. 68 Regardless, in light of the severance, no remand is necessary if

this Court affirms the Order as it should because all issues as to Anadarko's

attorney fees and costs remain pending before the trial court and can be resolved

once this appeal is concluded.

SUMMARY OF THE ARGUMENT

22. Anadarko's proposed activities do not and will not constitute a

trespass under Texas law. Possession of a mineral estate entitles one to produce

the minerals and associated rights; it does not constitute the right to a specific area

or place below the "surface" of the Earth. Nothing Anadarko has done or proposes

to do will trample on any right associated with Lightning's Mineral Estate. Thus,

there can be no trespass, tortious interference or damages as a matter of fact or law.

Accordingly, the trial court correctly denied summary judgment for Lightning and

65
Lightning's Brief, at 45.
66
CR 272-73.
67
CR 804.
68
CR 295, 804.

20
granted summary judgment for Anadarko on all of Lightning's claims, including

its remedial request for injunctive relief.

ARGUMENT AND AUTHORITIES

23. "When a trial court's order granting summary judgment does not

specify the ground or grounds relied on for its ruling, summary judgment will be

affirmed on appeal if any of the theories advanced are meritorious." 69 With this

standard in mind, the Order should be affirmed for any or all of the reasons

discussed below.

A. No subsurface trespass has occurred or will occur.

i. The Mineral Estate is a bundle of rights, not a physical space.

24. "The gist of an action of trespass is the injury to the right of

possession." 70 Anadarko's proposed activities will not constitute a trespass under

Texas law because possession of a mineral estate entitles one to produce the

minerals and associated rights, not to possess a specific area or place below the

"surface" of the earth. Lightning misconstrues the nature of its Mineral Estate,

apparently believing it is defined solely by a location or depth such that the mere

presence of Anadarko's wellbores beneath the surface of the earth in the area

surrounding the Mineral Estate will amount to a trespass on the Mineral Estate.

69
Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).
70
Maranatha Temple, Inc. v. Enterprise Prods. Co., 833 S.W.2d 736, 739 (Tex. App. - Houston
[1st Dist.] 1992, writ denied) (emphasis in original).

21
However, the Mineral Estate is not a definable physical place entitling Lightning to

an absolute right to possess or occupy a specific depth or location in the ground.

To the contrary, it is a bundle of rights entitling Lightning to produce minerals and

rights attendant thereto. Lightning's entire position is premised on its

misconception of the Mineral Estate because it assumes Anadarko will "enter"

some physical space Lightning has the exclusive right to occupy. Once this

misconception is disposed of, all of Lightning's claims implode.

25. As it has done before, Lightning accuses Anadarko of attempting to

limit Lightning's bundle of rights in its Mineral Estate "solely to five

'attributes."' 71 It is unclear what material Lightning is reading because Anadarko

has repeatedly written that, while various cases formulate the rights included in

that bundle differently, 72 it recognizes "[s]ome of the key rights in American

jurisprudence that make up the bundle of property rights include the rights to

possess, use, transfer and exclude others." 73 However, Anadarko has found no

case (and Lightning cites none) which actually supports Lightning's argument that

its Mineral Estate includes a physical location. Thus, Lightning's bundle of rights,

71
Lightning's Brief, at 28.
72
See, e.g., French v. Chevron U.S.A. Inc., 896 S.W.2d 795, 797 (Tex. 1995) (holding that "[a]
mineral estate consists of five interests: 1) the right to develop, 2) the right to lease, 3) the right
to receive bonus payments, 4) the right to receive delay rentals, and 5) the right to receive royalty
payments"); Evanston Ins. Co. v. Legacy of Life, Inc., 370 S.W.3d 377, 383 (Tex. 2012)
(observing that "[s]ome scholars have observed that there are eleven core rights in the bundle of
property rights" and that"[m]any jurisdictions use variations of these rights to form the notion of
'fee simple' ownership ofreal property").
73
Evanston, 370 S.W.3d at 383.

22
irrespective of the words used to define it, is not impacted here because

Anadarko's wells will not produce from Lightning's Mineral Estate. Anadarko

makes no claim to Lightning's Mineral Estate whatsoever and it does not seek to,

and will not, dispossess Lightning of the minerals it is entitled to produce. 74 Thus,

Anadarko will not interfere with, or trespass on, any of Lightning's bundle of

rights as it is not developing, possessing, using or enjoying any of the

hydrocarbons Lightning has a right to produce from the Mineral Estate.

26. There is extensive law in Texas and other jurisdictions, including this

Court's recent opinion in Springer Ranch, Ltd. v. Jones, 75 confirming the Mineral

Estate connotes a bundle of rights, not a definable, physical, underground place as

Lightning contends. In Springer, this Court was called upon to determine how

royalties from a horizontal well that traversed both parties' properties were to be

allocated under a contract requiring payment "to the owner of the surface estate on

which such well or wells are situated ...." 76 Justice Chapa wrote the well was

"situated 'on' more than one 'surface estate'" 77 such that royalties were to be

allocated based on the productive portions of the well underlying the parties'
. . 78
respective properties.

74
CR 299, 742.
75
421 S.W.3d 273 (Tex. App. - San Antonio 2013, no pet.).
76
Id. at 277.
77 Id.
78
Id. at 289.

23
 27. In arriving at its holding in Springer, this Court construed "surface

estate" to mean "the portions of the earth, over which the surface estate owner

holds dominion after a severance of the mineral estate." 79 Lightning attempts to

give Springer short shrift in that it did not involve a trespass claim, injunctive relief

or real property because it dealt with minerals that had been produced and, thus,

had become personal property. The fact Lightning distinguishes between real and

personal property on this basis is interesting because Anadarko has repeatedly

pointed out that the Mineral Estate denotes rights to minerals in place - not rights

to a place - in part because minerals in place become personal property once they

are brought to the surface. It is the right to produce those minerals, not the

subsurface mass from which they are produced, to which Lightning can lay claim.

Springer confirms this truism.

28. Regardless, the fact the causes of action or requests for relief asserted

in Springer differ from those Lightning asserts in this case is irrelevant because

this Court noted in Springer that "[w]e fail to see why the meaning of 'surface

estate' should vary from one context to another." 80 Of particular relevance to the

present case, this Court went on to explain:

To understand what mineral and surface estate owners actually own,
we must discuss the relationship between hydrocarbons and the earth
surrounding them. Hydrocarbons reside within porous formations or

79
Id. at 282.
so Id. at 284.

24
 reservoirs of rock under immense pressure from the overlaying earth.
When the porous reservoir is pierced by a well, the pressure of the
impermeable earth above the reservoir and internal forces from within
the reservoir, such as water trapped with the hydrocarbons, push the
hydrocarbons out of the formation and into the well.

With that understanding in mind, we note ownership of the
hydrocarbons does not give the mineral owner ownership of the
earth surrounding those substances. 81

We note that the physical structures and subsurface substances that the
surface estate and mineral estate owners possess are inherently
intertwined, at least with respect to hydrocarbons. Some conflation is
unavoidable. However, if there are no minerals beneath the
surface, the mineral estate owner owns the legal fiction of an
estate that is nothing. 82

In sum, the Mineral Estate is defined by the rights it embraces, not by a physical

depth or location as Lightning suggests. The earth surrounding the minerals is part

of the Surface Estate the owner of which, Briscoe, has authorized Anadarko's

actions.

29. Lightning avers that this Court's holding in Springer cannot overrule

contrary holdings by the Texas Supreme Court. As discussed below, there are no

contrary holdings by the Texas Supreme Court. In actuality, Springer is not an

isolated decision and is consistent with the holdings of other courts, including the

81
Id. at 282-83 (citations and footnote omitted) (emphasis added).
82
Id. at 284 (citations omitted) (emphasis added).

25
Texas Supreme Court. For example, this Court quoted the following explanation

by the Texas Supreme Court as to the nature of a mineral estate:

While a mineral rights owner has a real interest in oil and gas in place,
this right does not extend to specific oil and gas beneath the property;
ownership must be considered in connection with the law of capture,
which is recognized as a property right as well. The minerals owner
is entitled, not to the molecules actually residing below the
surface, but to a fair chance to recover the oil and gas in or under
his land, or their equivalents in kind. 83

30. Likewise, in Humble Oil & Refining Co. v. West, the Wests conveyed

all of the subject lands to Humble "by fee simple conveyance" reserving only a

royalty interest. 84 The Texas Supreme Court thus observed that Humble "owns the

lands in fee simple, and this includes not only the surface and mineral estates,

but also the matrix of the underlying earth, i.e., the reservoir storage space,

subject only to the reserved right of the Wests to the payment of royalties on

minerals that are produced and saved." 85 The same is not true of Lightning as it

owns the Mineral Estate only.

31. In Springer, this Court also cited Emeny v. United States 86 and Dunn-

McCampbell Royalty Interest, Inc. v. Nat'! Park Serv., 87 both of which provide

guidance here. Emeny was cited with approval by the Texas Supreme Court in

83
Id. at 283-84 (quoting Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d I, 15
(Tex. 2008)) (italics by Texas Supreme Court; all other emphasis added).
84
508 S.W.2d 812, 813 (Tex. 1974).
85
Id. at 815 (emphasis added).
86
412 F.2d 1319 (Ct. CL 1969) (per curiam).
87
630 F.3d 411 (5th Cir. 2011).

26
Humble v. West. 88 It involved an attempt by a mineral lessee to inject and store

helium it produced elsewhere beneath the surface of the property in question. It

was held, however, that this right belonged to the surface owner because:

The surface of the leased lands and everything in such lands, except
the oil and gas deposits covered by the leases, were still the
property of the respective landowners. This included the
geological structures beneath the surface, including any such
structure that might be suitable for the underground storage of
"foreign" or "extraneous" gas produced elsewhere. 89

32. Likewise, Dunn-McCampbell involved a dispute over mineral owners'

rights of ingress and egress across the surface of the Padre Island National

Seashore owned by the National Park Service. Anadarko quotes the Fifth Circuit's

holding in favor of the National Park Service at some length because it is so

pertinent:

Although it is true that Dunn-Mccampbell and others own mineral
estates beneath the Seashore's surface, the conveyance of mineral
rights ownership does not convey the entirety of the subsurface.
As the Texas Supreme Court has stated, "[t]he minerals owner is
entitled, not to the molecules actually residing below the surface,
but to a fair chance to recover the oil and gas .... " Coastal Oil &
Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 15 (Tex.2008). In
other words, if there are no minerals beneath the surface of the
Seashore, Dunn-McCampbell owns the legal fiction of an estate that
is nothing.

Here, there was a conveyance of land to the Service. "[L]and includes
the surface of the earth and everything over and under it, including

88
Springer, 421 S.W.3d at 283.
89
412 F.2d at 1323 (citing Gulf Prod. Co. v. Continental Oil Co., 132 S.W.2d 553, 561 (Tex.
1939)) (emphasis added).

27
 minerals in place ... " Averyt v. Grande Inc., 717 S.W.2d 891, 894
(Tex.1986). In this case, the minerals were not "in place" since they
had been severed or were reserved. Although "[t]here is a difference
... between the estate granted and the land described [in that]
[l]and is the physical earth in its natural state, while an estate in
land is a legal unit of ownership in the physical land[,)" see id., it
unbearably strains credulity to suggest that a surface estate, conveyed
in a deed describing the land in horizontal terms, only touches a
millimeter of the surface, and excludes all other land below the
surface. If, as here, the surface estate alone is conveyed, and a
mineral reservation is made, the conveyance "vests in the grantee such
rights to the use thereof as are usually exercised by owners in fee
subject only to the right of the grantor to remove the minerals
reserved." Fleming Found. v. Texaco, Inc., 337 S.W.2d 846, 851
(Tex.Civ.App.1960) (emphasis added). As we have noted, the
mineral estate owner does not own the "molecules actually
residing below the surface." Coastal Oil & Gas Corp., 268 S.W.3d
at 15. It thus stands to reason that the Service, not Dunn-
McCampbell, owns all non-mineral "molecules" of the land, i.e.,
the mass that undergirds the surface of the National Seashore. 90

To summarize, Dunn-McCampbell does not own the land below
the Seashore's surface, and, even if it did, the subsurface land
would still be within the park's boundaries. Texas law establishes
that the holder of a mineral estate has the right to exploit
minerals, but does not own the subsurface mass. 91

Lightning makes much of the fact that Springer recognizes the owner of a mineral

estate has the right to exploit the minerals. That is true; Anadarko has said so all

along. However, the foregoing cases, and those that follow, draw a definitive

90
630 F.3d at 441-42 (italics in original; all other emphasis added).
91
Id. at 442 (emphasis added).

28
distinction between the right to exploit minerals and ownership of the subsurface

mass.

33. Cases from multiple other jurisdictions are in accord with Springer

and the other authorities briefed above. 92 In addition, an analogy exists in the law

of other jurisdictions governing coal mining. For example, in Oryn Treadway

Sheffield, Jr., Trust v. Consolidation Coal Co., the court recognized that "[o]nce

the coal is exhausted, the space it occupied reverts to the grantor by operation of

law." 93 This analogy is instructive because it acknowledges the aforementioned

distinction between a substance "in place" versus the "place" at which the

substance may be found. This distinction has long existed under Texas law

because, as alluded to above, minerals "are a part of the realty while in place;" 94

however, "[t]here can be no doubt that gas which has been produced is personal

92
See, e.g., Burlington Res. Oil & Gas Co., LP v. Lang & Sons Inc., 259 P.3d 766, 770 (Mont.
2011) (holding that "[t]he pore space beneath Lang's property belongs to Lang's surface estate in
the same manner that all the non-mineral material beneath the physical boundaries of Lang's
property belongs to Lang's surface estate"); Department of Transp. v. Goike, 560 N.W.2d 365,
366 (Mich. Ct. App. 1996) (concluding that "a surface owner possesses the right to the storage
space created after the evacuation of underground minerals or gas"); Pomposini v. T W Phillips
Gas & Oil Co., 580 A.2d 776, 778-79 (Pa. Super. Ct. 1990) (holding that the mineral lessee "did
not acquire an estate in the caverns" because "[t]he right to extract gas did not include the right
to use the cavernous spaces owned by the lessor for the storage of gas in the absence of an
express agreement").
93
819 F.Supp.2d 625, 629 (W.D. Va. 2011), ajj"d, 497 Fed. Appx. 318 (41h Cir. 2012).
94
Natural Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 192 (Tex. 2003); Texas Co. v.
Daugherty, 176 S.W. 717, 720 (Tex. 1915).

29
property." 95 This rule lends further credence to the view that the Mineral Estate

carries rights to the minerals, not rights to the location at which they may be

found beneath the surface.

34. The view that the contours of the Mineral Estate are not delineated by

reference to a physical location also comports with common sense and the

practicalities of the real world. Any attempt to define the Surface Estate and the

Mineral Estate such that one gives way to the other at a particular depth would

create a conundrum. Would the Surface Estate yield to the Mineral Estate a foot

below the ground? One hundred feet below the ground? One thousand feet?

Deeper? Shallower? For this reason, the law does not define the Mineral Estate as

reaching to any particular depth or stratum or as covering everything below the

surface of the earth. If the owner of a mineral estate truly had the right to

exclusively possess and occupy all spaces below the surface of the earth as

Lightning suggests, then a surface owner would be prohibited from doing anything

whatsoever at any depth below the surface, including such basic and common

activities as drilling a water well, installing a fence post or utility pole, excavating

to construct a lake or placing a basement beneath a building.

95
Lone Star Gas Co. v. Murchison, 353 S.W.2d 870, 879 (Tex. Civ. App. - Dallas 1962, writ
refd n.r.e.) (quoting 31-A TEx.JuR. 27 for the proposition that "[w]hen oil or gas is removed
from the soil it becomes personalty").

30
 35. While remaining essentially silent in response to this argument by

Anadarko, Lightning has attempted to dismiss a portion of it on the basis that a

groundwater well is part of the Surface Estate anyway. Lightning's observation is

accurate. However, it misses the point and actually bolsters Anadarko's position

that both the Surface Estate and the Mineral Estate are defined by the rights they

encompass, not by the location or depth at which those rights are exercised.

Absent interference with Lightning's Mineral Estate, the owner of the Surface

Estate is at liberty to exercise its rights at any depth and in any subsurface strata it

elects because "any mineral rights not severed from the original bundle of property

rights continue to pass with, and remain unsevered from, the surface estate." 96

Therefore, the right to grant access to or exclude others from the subsurface mass

underlying the Surface Estate belongs not to Lightning, but to Briscoe as the owner

of the Surface Estate; thus, Lightning lacks standing to complain. This is a wise

and pragmatic rule because it establishes a bright line. The rule Lightning urges

would not; to the contrary, it would create confusion and uncertainty because it

would become anyone's guess where the surface estate ends and the mineral estate

begins in any given case. Anadarko's position should be confirmed because the

law should create certainty rather than uncertainty whenever possible. 97

96
Sutton v. Green, No. 14-01-01043-CV, 2002 Tex. App. LEXIS 4983, at *8 (Tex. App. -
Houston [14th Dist.] Jul. 11, 2002, no pet.) (citing Birdwell v. Am. Bonding Co., 337 S.W.2d 120,
131 (Tex. App. -Fort Worth 1960, writ refd n.r.e.)).
97
See Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 510 (Tex. 1993) (noting the

31
 36. The cases Lightning cites involving surface trespasses are inapposite.

Concepts regarding surface trespass do not squarely fit in cases involving mineral

estates because a mineral estate is not and cannot be demarcated by reference to a

place or a physical "boundary" and cannot be trespassed upon absent interference

with the rights associated with the mineral estate. As the Texas Supreme Court

explained in Railroad Comm 'n of Texas v. Manzie!, "[t]he orthodox rules and

principles applied by the courts as regards surface invasions of land may not be

appropriately applied to subsurface invasions as arise out of the secondary

recovery of natural resources [because] [i]f the intrusions of salt water are to be

regarded as trespassory in character, then under common notions of surface

invasions, the justifying public policy considerations behind secondary recovery

operations could not be reached in considering the validity and reasonableness of

such operations." 98 Anadarko recognizes the present case does not involve

secondary recovery operations or an injection well as Manzie! did. Regardless,

Manzie! confirms that traditional surface trespass principles do not fit in the

subsurface context and that the public policy of promoting oil and gas development

is highly relevant and should be upheld if possible.

court's objective is "to promote certainty and uniformity in the law"); Greene v. Farmers Ins.
Exch., 446 S.W.3d 761, 771 (Tex. 2014) (Boyd and Willett, JJ., concurring) (quoting Oliver
Wendell Holmes, Jr., THE COMMON LAW 127 (1909), for the proposition that "the tendency of
the law must always be to narrow the field of uncertainty").
98
361 S.W.2d 560, 568 (Tex. 1962).

32
 37. The Texas Supreme Court employed similar logic in holding that

subsurface fracking is not a trespass even if it encroaches onto someone else's

lease:

Had Coastal caused something like proppants to be deposited on the
surface of Share 13, it would be liable for trespass, and from the
ancient common law maxim that land ownership extends to the sky
above and the earth's center below, one might extrapolate that the
same rule should apply two miles below the surface. But that maxim
- cujus est solum ejus est usque ad coelum et ad inferos - "has no
place in the modem world." Wheeling an airplane across the surface
of one's property without permission is a trespass; flying the plane
through the airspace two miles above the property is not. Lord Coke,
who pronounced the maxim, did not consider the possibility of
airplanes. But neither did he imagine oil wells. The law of trespass
need no more be the same two miles below the surface than two miles
above. 99

38. Notably, none of the cases Lightning relies upon involved horizontal

wells such as those Anadarko proposes to drill, nor do they present facts in line

with those of the present case. Although Lightning glosses over the distinction

between surface and subsurface trespasses, this distinction is dispositive and is

necessary to keep pace with technology and the real world.

39. Lightning's attempt to sidestep Anadarko's cases and to distinguish

Springer on the basis that it did not involve a trespass claim is striking when one

considers the subject matters of many of the authorities on which Lightning relies.

99
Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d I, 11 (Tex. 2008); see also id. at
30 (Willett, J., concurring) (positing that "[b]alancing the respective interests as we did in
Manzie!, this type of subsurface encroachment, like the waterflood in Manzie!, simply isn't
wrongful and thus isn't a trespass at all, not just a nonactionable trespass").

33
For instance, Lightning suggests a case addressing two certified questions

involving an organ donor in the insurance arena is somehow persuasive. 100 It is

not. Stephens County v. Mid-Kansas Oil & Gas Co. is another certified question

case relied on by Lightning, this one presenting the unrelated issue of "whether

appellee acquired . . . such interests or such estates in land as were subject to

separate taxation." 101 McAlister v. Eclipse Oil Co. 102 dealt with the cancellation of

stock. None of these cases have anything to do with the facts at bar.

40. Lightning cites Texas Co. v. Daugherty 103 to try to suggest it somehow

owns the subsurface strata despite this Court's holding in Springer. The issue in

Daugherty was whether certain leases constituted property subject to taxation. No

one questions that a mineral estate is a real property interest, that minerals are

considered real property while in place and that they are thus subject to property

taxes. Daugherty merely referenced "strata" to say minerals lie in them and are

taxable as such. It sheds no light on the question at hand because it is silent on the

issue of who actually owns the strata or subsurface space in which the minerals

may be found. Lightning's suggestion that Daugherty's holding in the taxation

context somehow means Lightning owns the entirety of the subsurface mass for

purposes of trespass law is wrong. Nothing in Daugherty suggests that the surface

100
See Evanston, 370 S.W.3d 377.
101
254 S.W. 290, 291 (Tex. 1923).
102
98 S.W.2d 171 (Tex. 1936).
103
176 S.W. 717 (Tex. 1915).

34
owner's property tax liability was reduced because it did not own the space within

the strata in which the minerals reside. For Lightning's reading of Daugherty to be

correct, such a reduction would have had to occur. Thus, Lightning's

interpretation does not comport with reality or common sense and conflicts with

Springer, as well as all of the other authorities Anadarko cited above. Again,

Springer makes clear the contours of the mineral and surface estates do not vary

with the context. 104

41. Lightning also relies on Marcus Cable Associates, L.P. v. Krohn, 105

which was an easement case holding that a narrow grant of an easement for

electrical lines does not authorize the grantee to expand its use to cable lines.

Marcus had nothing to do with minerals and did not involve a claim of subsurface

trespass, which is a peculiar type of claim to which "[t]he orthodox rules and

principles applied by the courts as regards surface invasions of land may not be

appropriately applied." 106

42. In sum, the types of cases relied upon by Lightning run the gamut;

however, not one of them addresses a trespass claim such as the one alleged here,

where the surface owner grants permission to a contiguous mineral owner to use its

surface to extract minerals which the contiguous mineral owner has, without

104
421 S.W.3d at 284.
105
90 S.W.3d 697 (Tex. 2002).
106
Manzie!, 361 S.W.2d at 568.

35
question, the right to produce. Further, not one case relied on by Lightning

addresses whether a mineral estate is a place or simply the right to obtain minerals

from a place. In contrast, Anadarko cites to cases that are much more analogous

and hold exactly that.

ii. None of the rights associated with the Mineral Estate have been
damaged or are in jeopardy of being damaged.

43. Anadarko is not aware of any Texas case finding a subsurface trespass

on a mineral estate without a showing of damage to or drainage of the minerals,

such as in the case of a well (unlike the wells Anadarko proposes) that is bottomed

on and actually producing oil or gas from a mineral estate in which the defendant

does not own an interest. This makes perfect sense because, as discussed above,

the mineral owner does not possess the right to a space but instead possesses the

right to extract minerals lying within that space. Lightning ignores this point and

continues to rely on cases that are distinguishable from the instant one on that very

basis. For example, in Hastings Oil Co. v. Texas Co., injunctive relief was granted

and a directional survey was ordered because, contrary to the facts at bar, it was

alleged that the defendant's well would be deviated such that it would bottom on

and produce from lands owned by the plaintiff. 107 Specifically, the injunction

upheld in Hastings restrained production of oil "from a well admittedly begun on

107
234 S.W.2d 389, 389 (Tex. 1950).

36
defendant's surface but allegedly completed in plaintiff's subsurface." 108 Those

facts stand in sharp contrast to those in this case, where the evidence shows

Anadarko's wells will not be completed on Lightning's Mineral Estate, do not

threaten to produce, destroy or remove minerals from the Mineral Estate and will

not harm or subtract from the value of the Mineral Estate. Again, Lightning

continues to cite Hastings, and even to include parentheticals recognizing it

involved a well that "bottomed out in another's mineral estate," 109 without

addressing this key distinction.

44. Watkins v. Certain-Teed Products Corp. is also instructive because

the court expressed a similar sentiment in the context of adverse possession by

recognizing that "a mere adverse possession and use of the surface does not

constitute adverse possession of the minerals under the surface." 110 To the

contrary:

[A]fter severance of the oil and gas estate adverse possession of the
surface is not adverse possession of the minerals. When the adverse
entry is made after the severance, something more than use of the
surface is required. Such dominion must be exercised over the
minerals as will be notice to the owner of the mineral estate that the
possessor of the surface estate is claiming the minerals also. 111 -

45. In sum, absent actual damage to the Mineral Estate or infringement of

the bundle of rights it includes, no cause of action lies. Anadarko' s proposed wells
108
Id. at 397 (emphasis added).
109
See, e.g., Lightning's Brief, at 18.
110
213 S.W.2d 981, 984-85 (Tex. Civ. App. -Amarillo 1950, no writ).
111
Id. at 985 (emphasis added).

37
would not exercise dominion over the minerals in Lightning's Mineral Estate.

Thus, it is a misnomer to say that Anadarko will somehow "enter" (much less

possess, use or damage) the Mineral Estate merely by passing its wellbores

through, but not producing from, one or more subsurface strata in which minerals

Lightning has a right to produce may be found. To do so would mean the mere

presence of a pipe (i.e., the wellbore) in some location or at some depth anywhere

beneath the surface of the earth under which Lightning's minerals rest is a trespass.

As shown, this is not - and cannot be - the law. To hold that it is would not only

fly in the face of common sense, it would also thwart what "has long been public

policy in Texas to promote development and protection of oil and gas." 112

46. Anadarko does not deny that if it actually interfered with Lightning's

rights to develop, possess, use or enjoy its minerals, then Hastings might apply and

a trespass could possibly be found. However, that has not occurred (because no

drilling has yet to take place) and there is no evidence that it will occur. Even if

there was a trespass, Lightning still would not be entitled to injunctive relief unless

2
ll See Brown v. Humble Oil & Ref Co., 83 S.W.2d 935, 940-41 (Tex. 1935) (recognizing this
policy as fundamental to the Railroad Commission's authority to promulgate rules, regulations
and orders relating to the protection of oil and gas); Coastal, 268 S.W.3d at 15 (explaining that
"the rule of capture makes it possible for the Commission, through rules governing the spacing,
density, and allowables of wells, to protect correlative rights of owners with interests in the same
mineral deposits while securing 'the state's goals of preventing waste and conserving natural
resources'"); Browning Oil Co., Inc. v. Luecke, 38 S.W.3d 625, 646 (Tex. App. - Austin 2000,
pet. denied) (observing that "[f]actors such as the prevention of waste, protection of the rights of
landowners, and maximized recovery of minerals bear upon this area of law [involving the rule
of capture as applied to horizontal wells] and necessarily affect the rights of the parties").

38
it showed loss of or injury to its minerals and that Anadarko was unable to respond

in damages for the resulting injuries. 113 Because Lightning did not and could not

make these requisite showings, the trial court properly refused to enter a temporary

injunction and ultimately granted summary judgment for Anadarko on Lightning's

request for injunctive relief.

47. As shown, the summary judgment evidence demonstrates that

Anadarko makes no claim to, and will not produce hydrocarbons from or in any

way damage, Lightning's Mineral Estate. It also demonstrates that Anadarko has

perm1ss1on from Briscoe to do what it proposes to do; thus, its actions are

justified. 114 Accordingly, summary judgment is in order because there is no

trespass or tortious interference as a matter of law. As detailed above, the only hint

that Anadarko might possibly interfere with Lightning's Mineral Estate is a

suggestion by Lightning's witnesses at the temporary injunction hearing that there

could potentially be damage if a blowout were to occur and that the five wells

Anadarko might drill from the surface location in question could cause Lightning

difficulty in drilling a potential "protection well" that is "on the drawing board." 115

113
TEX. Crv. PRAC. & REM. CODE§ 65.012(a); Appendix A.
114
Prudential Ins. Co. of Am. v. Financial Review Servs., Inc., 29 S.W.3d 74, 80 (Tex. 2000)
(observing that the justification defense to a tortious interference claim presents a question oflaw
and "can be based on the exercise of either (1) one's own legal rights or (2) a good-faith claim to
a colorable legal right, even though that claim ultimately proves to be mistaken").
115
CR 505, at 11. 6-22; CR 508, at 11. 6-14; CR 509, at 11. 1-2.

39
Again, however, those same witnesses conceded that any such risk is only a

"possibility, not a probability" 116 and is miniscule at best. 117

48. The suppositions Lightning's witnesses offered were inadequate to

establish probable, imminent and irreparable injury as necessary for Lightning to

obtain injunctive relief. They also constitute no evidence of damage as a matter of

law. This is so for at least two reasons. First, "[t)here can be no recovery for

damages which are speculative or conjecturaL The damages must be ascertainable

in some manner other than by mere speculation or conjecture, and by reference to

some fairly definite standard, established experience, or direct inference from

known facts." 118 Speculative testimony about what might occur if something were

to happen at some unknown future time does not pass this test. Second, the

testimony of Lightning's witnesses confirms no damage has occurred at this

juncture; thus, any claim for damages is not ripe as it is premature at best. 119 This

is another reason Lightning lacks standing.

116
Temporary Injunction Transcript, at p. 99, II. 2-7.
117
Temporary Injunction Transcript, at p. 132, II. 13-19; Temporary Injunction Transcript, at p.
142, II. 3-13.
118
A.B.F. Freight Sys., Inc. v. Austrian Import Serv., Inc., 798 S.W.2d 606, 615 (Tex. App. -
Dallas 1990, writ denied) (citing Roberts v. US. Home Corp., 694 S.W.2d 129, 135 (Tex. App. -
San Antonio 1985, no writ), and Berry Contracting, Inc. v. Coastal States Petrochemical Co.,
635 S.W.2d 759, 761 (Tex. App. - Corpus Christi 1982, writ refd n.r.e.)); Texas Pipe Line Co.
v. Hildreth, 225 S.W. 583, 584-85 (Tex. Civ. App. - Fort Worth 1920, no writ).
119
Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 852 (Tex. 2000) (holding "[a] case is not
ripe when determining whether the plaintiff has a concrete injury depends on contingent or
hypothetical facts, or upon events that have not yet come to pass").

40
 49. Lightning writes that it "has met its obligations under [the Cutlass

Lease] and intends to continue to do so provided that Anadarko does not trespass

... or interfere with Lightning's development of its mineral estate." 120 Again, there

will be no trespass or interference. Regardless, it appears Lightning believes its

fulfillment of its lease obligations somehow entitles it to prevent Anadarko from

exercising its rights under the Chaparral Wildlife Management Area Lease and

under its surface use agreement with Briscoe. If that is Lightning's belief, it is

both incorrect and a non-sequitur as Lightning's obligations remain the same

irrespective of Anadarko's surface location. For example, Anadarko recognizes

that Lightning has offset obligations; however, these obligations are not dependent

on Anadarko's surface location. Thus, Anadarko's planned wells should (and

based on the summary judgment evidence will) have no effect on Lightning's

obligations or its ability to meet the same. Moreover, Anadarko has shown it will

accommodate Lightning if and as reasonably necessary in keeping with industry

standards. 121 In short, Lightning can drill the wells it is obligated to drill

irrespective of Anadarko's activities.

50. Lightning advances cases involving geophysical data, claiming

Anadarko will commit a trespass because it will obtain core and log data

concerning the Mineral Estate that is proprietary to Lightning. In each of those

120
Lightning's Brief, at 3.
121
CR 740.

41
cases, the sole purpose of the defendant's conduct was to obtain information about

the plaintiff's mineral estate for its own use; thus, the conduct was unlawful from

the get-go. For example, Lightning relies on the Cowden cases involving trespass

on a mineral estate by way of a reflection seismograph survey. 122 However,

Cowden did not involve injunctive relief. In addition, the owner of the mineral

estate in Cowden proved damage. 123 That is not the situation here. 124

51. The summary judgment evidence establishes Anadarko will perforate

its wellbores for production only under its own Chaparral Wildlife Management

Area Lease and will conduct only minimal, necessary testing designed in part to

ensure it will not perforate its wells within Lightning's Mineral Estate. 125 None of

the information Anadarko obtains will benefit it beyond its drilling of the wells in

question exclusively in its own mineral estate. 126 As discussed, the Texas Supreme

Court has expressly held that subsurface fracking, even when suspected or known

to go onto and penetrate another's lease, is not a trespass. 127 Thus, the rule of

capture is alive and well in Texas so long as field rules are honored. Lightning

does not and cannot suggest, and there is no summary judgment evidence, that

122
Phillips Petroleum Co. v. Cowden, 241 F.2d 586 (5th Cir. 1957); Phillips Petroleum Co. v.
Cowden, 256 F .2d 408 (5th Cir. 1958).
123
241 F.2d at 593; 256 F.2d at 409 (holding "the evidence was sufficient to sustain the trial
court's finding that appellants had trespassed and that the damages per acre amounted to
$20.00").
124
CR 740-43.
125
CR 299, 740-41.
126 Id.
127
Coastal, 268 S.W.3d at 13, 17.

42
Anadarko has violated or will violate any field rules. To the contrary, the

summary judgment evidence confirms Anadarko intends to comply with all field

rules. 128 In the event it fails to do so, Anadarko will be subject to penalties and

there will be remedies available to Lightning.

52. As long as Anadarko perforates and fracture stimulates the Eagle Ford

formation in a lawful location under the Chaparral Wildlife Management Area

Lease, Lightning has no legal basis to grouse about the same. The Texas Supreme

Court has long recognized that the Railroad Commission's authority to promulgate

rules, regulations and orders relating to the protection of oil and gas is intended to

promote the public policy of oil and gas production. 129 Stated succinctly, the fact

that unproductive portions of Anadarko's wellbores will traverse under the Cutlass

Lease on the way to producing Anadarko's adjacent mineral estate is not the

equivalent of a trespass.

53. Lightning cites this Court's opm10n m Villarreal v. Grant

Geophysical, Inc. for the proposition that "trespass under Texas law includes

subsurface trespass as in the oil and gas context." 130 Anadarko does not dispute

that statement; however, as shown by Springer and the other authorities cited

128
CR 299, 302.
129
See Brown, 83 S.W.2d at 940-41; Coastal, 268 S.W.3d at 15 (explaining that "the rule of
capture makes it possible for the Commission, through rules governing the spacing, density aud
allowables of wells to protect correlative rights of owners with interest in the same mineral
deposits while securing 'the state's goal of preventing waste aud conserving natural resources"').
130
136 S.W.3d 265, 268 (Tex. App. - Sau Antonio 2004, pet. denied); Lightning's Brief, at 12.

43
above, trespass law must apply differently beneath the surface than it does on the

surface. In Villarreal, the defendants received permission to shoot three-

dimensional seismic on various tracts all around the mineral estate owned by the

Villarreals, who did not consent to the defendants' seismic activities. The

defendants claimed it was unavoidable to obtain data from the Villarreals' mineral

estate. This Court found no trespass occurred and that the defendants "did not

wrongfully secure a benefit nor did they passively receive one which would be

unconscionable to retain." 131 Thus, Villarreal confirms that a plaintiff has no claim

when data is obtained without a trespass. Here, the evidence confirms that when

the wells are drilled there will be no trespass because Anadarko is authorized to

conduct all planned activities; thus, even if Lightning experienced some

consequential indirect impact, that would not make the planned actions

improper. 132 That is particularly true where, as here, there is no damage.

54. Likewise, Lightning relies upon FPL Farming, Ltd. v. Environmental

Processing Systems, L.C. 133 for its assertion that a subsurface trespass is actionable.

131
Id. at 270.
132
See, e.g., Restatement (Second) of Torts§ 822 cmt. G (1997); Goose Creek Ice Co. v. Wood,
223 S.W. 324, 328-29 (Tex. Civ. App. - Galveston 1920, no writ) (holding one is not entitled to
relief against apprehension of injury or "mere prospect of future annoyance ... [s]o the erection
of a building for a lawful purpose will not be restrained"); see id. ("To authorize an injunction
preventing the use by the owner of the property for any lawful purpose, or in the carrying on of
any lawful purpose, it must be shown that such use will materially injure or damage the person
complaining of such use. This is especially true in regard to business enterprises in which the
rublic are interested or derive a benefit.")
33
351 S.W.3d 306 (Tex. 2011); Lightning's Brief, at 34-35.

44
This is another example of Lightning reciting black-letter law that is undisputed by

Anadarko, but which does not apply. In FPL, it was alleged that wastewater

injected into the defendant's deep wastewater injection wells physically migrated

onto the plaintiffs property and contaminated its water supply. 134 The sole issue in

FPL was whether the defendant was absolved of tort liability simply because it had

obtained regulatory permits to drill its wells. The court held it was not. 135

Regardless, Anadarko asserts no such defense. Moreover, the FPL court expressly

noted that "[w]e do not decide today whether subsurface wastewater migration can

constitute a trespass, or whether it did so in this case." 136 Thus, Lightning's

assertion that FPL involved a "subsurface trespasser" is at best hyperbole because

the court made no such determination. Regardless, FPL is of no value here

because there is and has been no trespass. Accordingly, summary judgment for

Anadarko was proper.

B. Lightning's consent is not necessary.

55. Briscoe, as the owner of the Surface Estate, expressly consented to

Anadarko's proposed activities; thus, Lightning's consent is not necessary.

Moreover, the existence of Anadarko's surface use agreement with Briscoe

confirms Anadarko's activities are justified and/or excused such that there is no

134
Id. at 307.
135
Id. at 314.
136
Id. at 314-15.

45
tortious interference or trespass. Lightning writes that the surface owner "cannot

unilaterally permit a third party to drill an oil-and-gas wellbore through a severed

mineral estate regardless of where it bottoms out." 137 It cites no authority for that

proposition because there is none. In fact, Humble Oil & Refining Co. v. L & G

Oil Co. 138 is on point and confirms the contrary is true. Lightning attempts to

distinguish Humble because it did not involve a trespass claim; however, it did

involve a request for injunctive relief. Moreover, it articulated a rationale that

squarely fits this case.

56. In Humble, Magee and Massad obtained permits to drill wells on their

leaseholds underlying a railroad right-of-way but were unable to secure permission

from the railroad to drill from the surface of the right-of-way. 139 Magee and

Massad acquired the right to drill from the surface of an adjacent one-acre parcel.

Humble owned the mineral estate underlying the one-acre parcel. 140 Much like

Anadarko here, Magee and Massad sought to drill directionally through a portion

ofHumble's mineral estate and bottom their wells within their own mineral estates.

The court refused to enjoin Magee and Massad from doing so, reasoning that (a)

the bottom hole locations of Magee's and Massad's wells were in their own

mineral estates and would not extract hydrocarbons directly from Humble's

137
Lightning's Brief, at 25.
138
259 S.W.2d 933 (Tex. Civ. App. -Austin 1953, writ refd n.r.e.).
139
Id. at 934.
140
Id. at 934-35.

46
mineral estate, 141 (b) Humble's mere suggestion that it may want to drill from the

surface location occupied by Magee and Massad at some point in the future was

insufficient to show interference with its mineral rights 142 and (c) Magee and

Massad obtained the right to enter the subject surface estate. Finding no evidence

of interference with Humble's mineral rights, the court held the surface owner's

valid exercise of its rights trumped those of the mineral owner and denied

injunctive relief. This holding confirms that even when the mineral estate has been

severed, the surface estate extends to the center of the earth.

57. Each of the factors relied on in Humble exists in the case at bar. First,

Lightning failed to show that Anadarko's surface well locations or proposed

drilling activities will interfere with its mineral rights at all, conceding its current

planned well will not be impacted. 143 Second, Lightning merely muses it may

want to drill, at some future time, from the location Briscoe permitted Anadarko to

use as a drill site, which Humble confirms is insufficient. Finally, Anadarko stands

in much the same position Magee and Massad did in Humble because it: (a) has

been unable to reach an agreement to develop its leasehold from the surface

directly above it (and in fact must develop from offsite locations "when prudent

141Id.
142Id.
143
Temporary Injunction Transcript, at p. 90, 1. 8 through p. 91, 1. 4; Temporary Injunction
Transcript, at p. 92, IL 8-17.

47
and feasible"); 144 (b) lawfully obtained express permission from Briscoe as the

owner of the Surface Estate adjacent to Anadarko's mineral estate to enter and

conduct drilling operations from designated locations on the Surface Estate; and (c)

will perforate and produce its well(s) solely from within its own mineral estate.

These factors not only support the trial court's denial of Lightning's motion for

summary judgment and its granting of Anadarko's, they also confirm Anadarko

needed only to obtain the consent of the owner of the Surface Estate to do that

which it proposes to do.

58. Commentators support the reasoning of Humble and conclude that,

absent a showing of interference, a subsurface trespass should not be found if an

operator like Anadarko secures permission from a surface owner to drill

directionally from the surface site to develop minerals on adjacent land. As

observed by one such commentator, "permission from (mineral) Lessee Y seems to

be necessary only if the drilling of the well interferes with Y's right to produce the

minerals from Tract A ... 145 Using the following hypothetical that is virtually

identical to the present case, another commentator urges that permission from the

144
CR 301-02, 309; Temporary Injunction Transcript, at p. 85, 11. 11-14.
145
See H. Philip Whitworth & Davin McGinnis, Square Pegs, Round Holes: The Application
and Evolution of Traditional Legal and Regulatory Concepts for Horizontal Wells, 7 TEX. J. OIL,
GAS & ENERGY LAW 177, 201 (2011/2012); see also Owen L. Anderson, Lord Coke, the
Restatement, and Modern Subsurface Trespass Law, 6 TEX. J. OIL, GAS & ENERGY LAW 203,
206 (2011).

48
surface owner to enter the land is sufficient to prohibit an actionable subsurface

trespass claim, absent any actual damage to the subsurface owner:

Suppose that an operator who holds the right to develop Tract B
locates a well on the surface of Tract A and uses the surface and
subsurface of Tract A to gain access to the Tract B hydrocarbons.
Further suppose that the Tract A surface owner gave the operator
permission to use both the surface and subsurface of Tract A for this
purpose but that the mineral (hydrocarbon) owner of Tract A did not
give permission. Further, suppose that the surface of Tract B will not
readily accommodate an efficient well location that all well
perforations comply with conservation regulations and are limited to
Tract B. 146

The treatise goes on to note that as a practical matter, subsurface owners would

seldom, if ever, consent for another to enter the surface for the purpose of drilling

to an adjacent land because subsurface owners have "a natural incentive to deny

access due to the drainage they might suffer." 147 This concern is addressed by

compliance with regulatory restrictions and the rule of capture, which assure

everyone a fair opportunity to produce their minerals. This is another reason the

mineral estate owner's consent is not required.

59. Lightning points to Chevron Oil Co. v. Howell 148 in an effort to avoid

Humble. Setting aside the fact Chevron has never been cited by a court, it fails to

support Lightning's argument and is not "almost identical" to this case as

146
Owen L. Anderson, Subsurface "Trespass": A Man's Subsurface Is Not His Castle, 49
WASHBURN L.J. 247, 263 (2010).
147 Id.
148
407 S.W.2d 525 (Tex. Civ. App. - Dallas 1966, writ ref d n.r.e.).

49
Lightning contends. 149 Lightning tells this Court that Chevron holds "both the

mineral-estate owner and the surface-estate owner must give permission" m

circumstances such as exist here. 150 In actuality, Chevron holds no such thing. It

simply recites that neither the mineral nor surface estate owner in question gave

permission, not that both must give permission. A more accurate summary of the

facts of that case follows.

60. In Chevron, the defendant attempted to drill from a surface location

adjacent to its mineral estate without obtaining permission to enter from the

surface lessee. Instead, the surface lessee expressly opposed the use of his surface

and was one of the parties seeking injunctive relief to prevent the surface

operations on his land. Thus, a surface trespass was occurring; that is not so here

because Anadarko has express permission from Briscoe to enter upon and make

use of the Surface Estate. That a surface trespass occurred appears to be the

primary, if not the sole, basis on which the Chevron court granted injunctive relief.

Moreover, unlike the present case where Lightning's own witnesses conceded that

Anadarko's proposed wells would not cause any interference, there was evidence

in Chevron of damage to the mineral estate and interference with the surface

lessee's existing uses. 151 These distinctions are crucial because they go to the heart

149
Lightning's Brief, at 19.
150
Lightning's Brief, at 20.
151
407 S.W.2d at 528.

50
of Anadarko's position that the law requires only the consent of the owner of the

Surface Estate and that the owner of the Mineral Estate has no claim absent actual

damage to a right it truly possesses.

61. In another effort to minimize the impact of Anadarko's surface use

agreement with Briscoe, Lightning points out the agreement contains an indemnity

provision which it says confirms "Briscoe knew full well that the activity

Anadarko proposed was unrelated to its operation of the surface estate." 152 This is

raw speculation. Equally important, there is no summary judgment evidence of

this or any other particular motive behind the indemnity provision, nor is there any

evidence to suggest that the provision was anything other than what is commonly

included in surface use agreements. To the contrary, at most it may indicate that

Briscoe does not want to have to deal with frivolous claims like Lightning asserts.

What is undeniably clear is that Briscoe's belief as to the legal effect of the

indemnity provision, if any such evidence of Briscoe's belief was in the record

(which it is not), is irrelevant because that is a question of law for this Court to

decide. 153 Interpreting the surface use agreement under existing principles of law

can result in but one conclusion, that it lawfully grants Anadarko the rights to use

Briscoe's Surface Estate and to drill below the Surface Estate in order to reach the

152
Lightning's Brief, at 27.
153
Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011).

51
Chaparral Wildlife Management Area Lease. Accordingly, the Order granting

summary judgment for Anadarko should be affirmed.

C Additionally and/or alternatively, Anadarko is entitled to a no-evidence
summary judgment.

62. Rule 166a(i) of the Texas Rules of Civil Procedure provides that a

court "must grant" a no-evidence motion for summary judgment unless the

respondent produces summary judgment evidence raising a genuine issue of

material fact as to each challenged element on which the respondent has the burden

of proof at trial. 154 Lightning correctly recites that the parties agreed to submit the

"central legal issues" by way of cross-motions for summary judgment and that they

agree whether a subsurface trespass occurred or will occur is a question of law. 155

Thus, it is a mystery how Lightning now argues in its brief that fact issues exist.

They do not.

63. It is also curious how Lightning purports to know that "[t]he judge did

not grant a no-evidence summary judgment." 156 As written above, the trial court

entered the Order granting summary judgment for Anadarko without specifying the

grounds on which it did so; thus, the Order must be affirmed on appeal "if any of

the theories advanced are meritorious." 157

154
TEX. R. CIV. P. l 66a(i); Appendix B.
155
Lightning's Brief, at 45.
156
Lightning's Brief, at 44.
157
Dow Chemical, 46 S.W.3d at 242.

52
 i. Trespass

64. To recover damages for trespass to real property, a plaintiff must

prove (a) ownership or lawful right to possess real property, (b) the defendant

made a physical, intentional and voluntary entry onto plaintiff's land and (c)

defendant's trespass caused injury to the plaintiff. 158 In the context of this case,

"[t]he gist of an action of trespass is the injury to the right of possession." 159

Lightning produced no evidence, nor could it, that Anadarko has physically,

intentionally and/or voluntarily "entered" the Mineral Estate or that it will do so.

As shown, the Mineral Estate is not a place but is a bundle of rights; thus, it is

impossible for Anadarko to "enter" the Mineral Estate unless it actually infringes

on one or more of those rights. There is no evidence that anything Anadarko has

done or will do in connection with its proposed drilling and development activities

has injured, or will injure, Lightning's right to possess the Mineral Estate or its

right or ability to produce minerals therefrom. Likewise, there is no evidence that

Anadarko lacks authority to conduct its proposed activities or that Lightning has

standing to complain about those activities. To the contrary, Anadarko entered into

a surface use agreement with Briscoe authorizing that which it proposes to do. In

sum, there is no evidence of a single element required to prove a trespass claim.

158
Prize Energy Res., L.P. v. Cliff Hoskins, Inc., 345 S.W.3d 537, 557 (Tex. App. - San Antonio
2011, no pet.) (citing Wilen v. Falkenstein, 191 S.W.3d 791, 798 (Tex. App. - Fort Worth 2006,
pet. denied)).
159
Maranatha, 833 S.W.2d at 739 (emphasis in original).

53
 ii. Tortious Interference

65. The elements of a cause of action for tortious interference with an

existing contract are (a) a contract subject to interference exists, (b) the alleged act

of interference was willful and intentional, (c) the willful and intentional act

proximately caused damage and (d) actual damage or loss occurred. 160 There is no

evidence that any act by Anadarko proximately caused or will cause damage or

that actual damage or loss has occurred or will occur. Likewise, there is no

evidence that Anadarko's activities will interfere with any of Lightning's rights in

the Mineral Estate, including the rights of "exploring, drilling, mining, operating

for, producing, and owning those hydrocarbons" as alleged by Lightning. There is

no evidence that Anadarko will obtain sensitive geophysical data pertaining to the

Mineral Estate or that, if it does, Lightning will be damaged.

66. In addition, Anadarko's actions are justified if they are done in the

exercise of (a) Anadarko's own legal rights or (b) a good-faith claim to a colorable

legal right, even though that claim ultimately proves to be mistaken. 161 In light of

Anadarko's surface use agreement with Briscoe, there is and can be no evidence

that Anadarko has done or will do anything other than exercise its own legal rights

or that it has acted or will act under a good-faith claim to a colorable legal right.

Thus, there is no evidence that its actions are not justified.

160
ACS Investors v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997).
161
Prudential, 29 S.W.3d at 80.

54
 iii. Injunctive relief

67. Injunctive relief is improper under the present facts, as both the trial

court and this Court already have held. Lightning's request for injunctive relief is

a remedy, not a cause of action. 162 In order to show it is entitled to the

extraordinary remedy of injunctive relief, Lightning was required to plead and

prove (a) a valid cause of action against Anadarko, (b) a probable right of recovery

and (c) a probable, imminent and irreparable injury in the interim. 163 Moreover,

Lightning must have shown "loss of or injury to [its] minerals" and an inability by

Anadarko "to respond in damages." 164 Lightning failed to produce evidence to

satisfy any of these elements.

68. First, as shown above, Lightning did not and cannot establish a valid

cause of action or a probable right of recovery for subsurface trespass under Texas

law because no actionable trespass has occurred or will occur under Anadarko's

proposed five-well drilling plan. Second, Lightning proved no damage or injury,

much less any damage that is probable or imminent. It also failed to show

irreparable injury. Irreparable injury exists only "if the injured party cannot be

162
Texas Dep "t of State Health Servs. v. Balquinta, 429 S.W.3d 726, 748 (Tex. App. - Austin
2014, pet. dism'd) (citing Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 625 n.2 (Tex. 2011)
(explaining that permanent injunctive relief is not itself a cause of action, but a remedy
"available only if liability is established under a cause of action" (citing Valenzuela v. Aquino,
853 S.W.2d 512, 514 n.2 (Tex. 1993)).
163
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); Sun Oil Co. v. Whitaker, 424
S.W.2d 216, 218 (Tex. 1968).
164
TEX. CJV. PRAC. & REM. CODE§ 65.012(a); Appendix A.

55
adequately compensated in damages or if the damages cannot be measured by any

certain pecuniary standard." 165 Any injury to the Mineral Estate, were an injury to

occur, would be compensable in damages. Lightning admitted as much at the

temporary injunction hearing. 166 It also admitted in its brief that it believes it can

quantify damages. 167 Again, there are no damages for all of the reasons explained;

however, Lightning's admission that any damages can be monetized defeats its

request for injunctive relief. Because there is no evidence to the contrary, the trial

court correctly granted summary judgment for Anadarko.

PRAYER

WHEREFORE, Anadarko requests that this Court affirm the Order and grant

Anadarko such other and further relief to which it may be justly entitled.

165
Butnaru, 84 S.W.3d at 204.
166
Temporary Injunction Transcript, at p. 99, II. 8-22; Temporary Injunction Transcript, at p.
13 7, I. 17 through p. 13 8, I. 2 (averring that the well currently planned by Lightning will not be
interfered with by any of Anadarko's wells planned from the drill site in question).
167
Lightning's Brief, at 50.

56
Respectfully submitted,

Isl David A. Palmer
Shayne D. Moses
State Bar No. 14578980
smoses@mph-law.com
David A. Palmer
State Bar No. 00794416
dpalmer@mph-law.com
Timothy D. Howell
State Bar No. 24002315
thowell@mph-law.com
MOSES, PALMER & HOWELL, L.L.P.
309 W. 7th Street, Suite 815
Fort Worth, Texas 76102
8171255-9100
8171255-9199 (Fax)

Donato D. Ramos
State Bar No. 16508000
dondramos@yahoo.com
Donato D. Ramos, Jr.
State Bar No. 24041744
donatoramosjr@ddrlex.com
LAW OFFICES OF DONATO D. RAMOS,
LLP
6721 McPherson Road
P.O. Box 452009
Laredo, Texas 78045
9561722-9909
9561727-5885 (Fax)

ATTORNEYS FOR APPELLEE

57
 CERTIFICATE OF COMPLIANCE WITH WORD LIMIT

Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,
Anadarko certifies that the total number of words in this document, excluding the
portions that may be excluded pursuant to Rule 9.4(i)(l), is 13,374.

Isl David A. Palmer
David A. Palmer

CERTIFICATE OF SERVICE

On April 1, 2015, a true and correct copy of this brief was served on the
following counsel of record by electronic service and by certified mail, return
receipt requested:

Bruce K. Spindler
Robinson C. Ramsey
John W. Petry
Stephen J. Ahl
LANGLEY & BANACK, INC.
Trinity Plaza II, Suite 900
745 East Mulberry Avenue
San Antonio, Texas 78212

Isl David A. Palmer
David A. Palmer

58
 APPENDIX

A TEX. Crv. PRAC. & REM. CODE§ 65.012

B TEX. R. Crv. P. 166a(i)

J:\anadarko\lightning oil\pleadings\appellate\appellee's brief - appeal of sj (final).doc

59
 Tex. Civ. Prac. & Rem. Code § 65.012
This docu1nent is current through the 2013 3rd Called Session

Texas Statutes and Codes > CIVILPRACTICEAND REMEDIES CODE > TITLE 3. EXTRAORDINARY
REMEDIES > CHAPTER 65. INTUNCTION > SUBCHAPTER B. AVAILABILITY OF REMEDY

§ 65.012. Operation of Well or Mine
(a) A court may issue an injunction or temporary restraining order prohibiting subsurface drilling or 1nining operations
only if an adjacent landowner filing an application claims that a wrongful act caused injury to his surface or
improve1nents or loss of or injury to his minerals and if the party against whom the injunction is sought is unable
to respond in damages for the resulting injuries.
(b) To secure the payment of any injuries that may be sustained by the complainant as a result of subsurface drilling
or mining operations, the party against whom an injunction is sought under this section shall enter into a good and
sufficient bond in an amount fixed by the court hearing the application.

(c) The court may appoint a trustee or receiver instead of requiring a bond if the court considers it necessary to protect
the interests involved in litigation concerning an injunction under this section. The trustee or receiver has the
powers prescribed by the court and shall take charge of and hold the minerals produced from the dri1ling or mining
operation or the proceeds from the disposition of those minerals, subject to the final disposition of the litigation.

History
Enacted by Acts 1985, 69th Leg .• ch. 959 (S.B. 797). § 1, effective September 1, 1985.
LexisNexis ® Texas Annotated Statutes
Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved.

DAVID PALMER
Appendix A
 Tex. R, Civ. P. J 66a
This document is current through February 4, 2015

Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE > PART II. RULES
OF PRACTICE IN DISTRICT AND COUNTY COURTS > SECTION 8. Pre-Trial Procedure

Rule 166a Summary Judgment
(a) For Clainiant. --A party seeking to recover upon a clai1n, counterclaim, or cross-clain1 or to obtain a declaratory
judgment may, at any time after the adverse party has appeared or answered, n1ove with or without supporting
affidavits for a summary judg1nent in his favor upon all or any part thereof. A summary judgment, interlocutory
in character, may be rendered on the issue of liability alone although there is a genuine issue as to amount of
damages.

(b) For Defending Party. --A party against whom a claim, counterclaim, or cross-clai1n is asserted or a declaratory
judgment is sought may, at any ti111e, move with or without supporting affidavits for a summary judgment in his
favor as to all or any part thereof.

(c) Motion and Proceedings Thereon. --The n1otion for summary judgment shall state the specific grounds therefor.
Except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed
and served at least twenty-one days before the time specified for hearing. Except on leave of court, the adverse
party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written
response. No oral testimony shall be received at the hearing. The judg1nent sought shall be rendered forthwith if
(i) the deposition transcripts, interrogatory answers, and other discovery responses referenced or set forth in the
motion or response, and (ii) the pleadings, admissions, affidavits, stipulations of the parties, and authenticated or
certified public records, if any, on file at the time of the hearing, or filed thereafter and before judg111ent with
permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any nlaterial
fact and the moving party is entitled to judgment as a 1natter of law on the issues expressly set out in the motion
or in an answer or any other response. Issues not expressly presented to the trial court by v. ritten motion, answer
1

or other response shall not be considered on appeal as grounds for reversal. A summary judgment may be based
on uncontroverted testimonial evidence of an interested witness, or of an expert witness as to subject matter
concerning which the trier of fact n1ust be guided solely by the opinion testimony of experts, if the evidence is clear,
positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been
readily controverted.

(d) Appendices, References and Other Use of Discovery Not Othenvise on File. --Discovery products not on fi]e with
the clerk may be used as sum1nary judgment evidence if copies of the material, appendices containing the evidence,
or a notice containing specific references to the discovery or specific references to other instruments, are filed and
served on all parties together with a statement of intent to use the specified discovery as summary judgment proofs:
(i) at least twenty-one days before the hearing if such proofs are to be used to support the surn111ary judgment; or
(ii) at least seven days before the hearing if such proofs are to be used to oppose the summary judgment.
(e) Case Not Fully Adjudicated on Motion. --If su1nmary judgment is not rendered upon the whole case or for all the
relief asked and a trial is necessary, the judge may at the hearing examine the pleadings and the evidence on file,
interrogate counsel, ascertain what mate1ial fact issues exist and make an order specifying the facts that are
established as a matter of law, and directing such further proceedings in the action as are just.
(f) Forni of Affulavits; Further Testi1nony. --Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof
referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be
supplen1ented or opposed by depositions or by further affidavits. Defects in the form of affidavits or attachn1ents
will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity,
but refusal, to amend.

DAVID PALMER
AppendixB
 Page 2 of 2
Tex. R. Civ. P. 166a

(g) When Affulavits Are Unavailable. --Should it appear from the affidavits of a party opposing the motion that he
cannot for reasons stated present by affidavit facts essential to justify his opposition, the court n1ay refuse the
application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken
or discovery to be had or may make such other order as is just.
(h) Affulavits Made in Bad Faith. --Should it appear to the satisfaction of the court at any time that any of the
affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall
forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which
the filing of the affidavits caused him to incur, including reasonable attorney's fees, and any offending party or
attorney may be adjudged guilty of contempt.

(i) No-Evidence Motion. --After adequate time for discovery, a party without presenting summary judgment evidence
may move for summary judgment on the ground that there is no evidence of one or more essential elements of a
claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the
elements as to which there is no evidence. The court inust grant the n1otion unless the respondent produces
su1n1nary judgment evidence raising a genuine issue of nlaterial fact.
Texas Rules
Copyright© 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.

DAVID PALMER