Escondido Resources II, LLC v. Justapor Ranch, L.C.

ACCEPTED
04-14-00905-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
5/15/2015 11:46:24 AM
KEITH HOTTLE
CLERK

No. 04-14-00905-CV

FILED IN
4th COURT OF APPEALS
In the Fourth District Court of Appeals SAN ANTONIO, TEXAS
San Antonio, Texas 05/15/2015 11:46:24 AM
KEITH E. HOTTLE
Clerk
Escondido Resources II, LLC,
Appellant,

v.

Justapor Ranch Company, L.C.,
Appellee.

On Appeal from the 49th Judicial District Court
Webb County, Texas,
Cause No. 2013-CV7-001396-D1

BRIEF OF APPELLANT

James P. Keenan Robert Dubose Wallace B. Jefferson
State Bar No. 11167850 State Bar No. 00787396 State Bar No. 00000019
keenan@buckkeenan.com rdubose@adjtlaw.com wjefferson@adjtlaw.com
J. Robin Lindley ALEXANDER DUBOSE Rachel A. Ekery
State Bar No. 12366100 JEFFERSON & TOWNSEND LLP State Bar No. 00787424
lindley@buckkeenan.com 1844 Harvard Street rekery@adjtlaw.com
BUCK KEENAN, LLP Houston, Texas 77008 ALEXANDER DUBOSE
700 Louisiana, Suite 5100 Telephone: (713) 523-2358 JEFFERSON &TOWNSEND LLP
Houston, Texas 77002 Facsimile: (713) 523-4553 515 Congress Avenue
Telephone: (713) 225-4500 Suite 2350
Facsimile: (713) 225-3719 Additional counsel listed on Austin, Texas 78701
next page Telephone: (512) 482-9300
Facsimile: (512) 482-9303

ATTORNEYS FOR APPELLANT

Oral Argument Requested
 IDENTITY OF PARTIES AND COUNSEL

Appellant: Escondido Resources II, LLC

Appellate Counsel: Wallace B. Jefferson
Rachel A. Ekery
ALEXANDER DUBOSE JEFFERSON
&TOWNSEND LLP
515 Congress Avenue, Suite 2350
Austin, Texas 78701

Robert Dubose
ALEXANDER DUBOSE JEFFERSON
& TOWNSEND LLP
1844 Harvard Street
Houston, Texas 77008

Kirsten Castañeda
ALEXANDER DUBOSE JEFFERSON
&TOWNSEND LLP
4925 Greenville Avenue, Suite 510
Dallas, Texas 75206
Telephone: (214) 369-2358
Facsimile: (214) 369-2359

Trial and Appellate Counsel: James P. Keenan
J. Robin Lindley
BUCK KEENAN, LLP
700 Louisiana, Suite 5100
Houston, Texas 77002

Appellee: Justapor Ranch Company, L.C.

Appellate Counsel: Timothy Patton,
TIMOTHY PATTON, P.C.
14546 Brook Hollow #279
San Antonio, Texas 78232

Trial and Appellate Counsel: Patton G. Lochridge
MCGINNIS LOCHRIDGE & KILGORE LLP

2
600 Congress Avenue, Suite 2100
Austin, Texas 78701

Jose M. Rubio, Jr.
JOE RUBIO LAW FIRM
1000 Washington Street, Suite 4
Laredo, Texas 78040

3
 TABLE OF CONTENTS

Identity of Parties and Counsel .................................................................................2

Index of Authorities ..................................................................................................7

Statement of the Case..............................................................................................13
Issues Presented ......................................................................................................14

Statement of the Facts .............................................................................................15

Summary of Argument ...........................................................................................30
Argument.................................................................................................................32

I. The trial court erred by granting summary judgment that the lease
terminated because Escondido did not correctly reconcile royalty
underpayment. ..............................................................................................33
A. Texas law disfavors lease termination and prohibits termination
absent clear, unequivocal, and unambiguous lease language. ...........33
B. Paragraph XIV does not provide that the lease terminates for a
failure to reconcile underpaid royalties. .............................................37
1. The lease treats underpayment and nonpayment
differently, with different words in different provisions. ........38
2. Paragraph XIV terminates for nonpayment of royalties,
not underpayment.....................................................................44
3. Paragraph XIV does not address remedies for failure to
reconcile underpayment. ..........................................................46

4. In any event, Paragraph XIV cannot support termination
so long as Escondido’s interpretation is reasonable. ...............49

C. Independently, termination is improper because Justapor did
not establish Escondido was required to reconcile any
underpayment. ....................................................................................49

4
 1. Justapor did not establish any underpayment for
production months February 2012 – January 2013 based
on unambiguous lease terms. ...................................................50
a. The special pricing provision replaced all pricing
measures, or alternatively was ambiguous. ...................51
b. The royalty price measure on which Justapor relies
is ambiguous or meaningless. ........................................54
2. Fact issues exist regarding production months November
2011 – January 2012. ...............................................................55
D. Independently, lease termination is improper because it is
inequitable on these facts. ..................................................................57
1. It would be inequitable to enforce a termination in light
of Justapor’s conduct. ..............................................................58
2. Forfeiture is inequitable because it would be
disproportionate with the alleged breach. ................................61

3. Forfeiture would be inequitable because Jones did not
raise it for 18 months after the alleged termination. ................62

E. Remedy: the summary judgment should be reversed in its
entirety and partial summary judgment rendered that there was
no termination.....................................................................................62

II. Regardless of whether the lease terminated, Justapor did not
conclusively establish Escondido was a bad-faith trespasser.......................63

A. Escondido was not a bad-faith trespasser per se because it
lawfully entered into possession of the land. .....................................64
B. Justapor also did not conclusively establish that Escondido
lacked a good-faith belief in the superiority of its title. .....................67

C. Because Escondido was not a bad-faith trespasser, the judgment
should be reversed and the case remanded for further
proceedings. ........................................................................................69

5
III. The trial court erred by granting summary judgment declaring the
parties’ rights and requiring conveyance of Escondido’s leasehold
interests regarding the “vacancy tract.” ........................................................71
A. Justapor did not conclusively establish its declaratory judgment
claim. ..................................................................................................72
1. Justapor did not conclusively establish that the interests
to be conveyed include leasehold interests. .............................73
2. Unless “mineral interests” and “additional interests”
mean the same thing, the letter agreement is ambiguous. .......75
3. Justapor did not establish that it had chosen an entity to
which any interests should be conveyed. .................................76
4. Justapor did not identify any leasehold interest that
should have been, but was not, conveyed. ...............................77
B. Justapor was not entitled to specific performance. ............................77
Conclusion and Prayer ............................................................................................80
Certificate of Compliance .......................................................................................82
Certificate of Service ..............................................................................................82

Appendix .................................................................................................................83

6
 INDEX OF AUTHORITIES

Page(s)

Cases
Am. Apparel Prods., Inc. v. Brabs, Inc.,
880 S.W.2d 267 (Tex. App.—Houston [14th Dist.] 1994, no writ) ................... 78

Am. Mfrs. Mut. Ins. Co. v. Schaefer,
124 S.W.3d 154 (Tex. 2003) ..............................................................................46

Anglo-Dutch Petroleum Int'l, Inc. v. Greenberg Peden, P.C.,
352 S.W.3d 445 (Tex. 2011) ..............................................................................59

Aquaplex, Inc. v. Rancho La Valencia, Inc.,
297 S.W.3d 768 (Tex. 2009) ..............................................................................34

Barnes v. Winona Oil Co.,
200 P. 985 (Okla. 1921) ................................................................................65, 66
Barrand, Inc. v. Whataburger, Inc.,
214 S.W.3d 122 (Tex. App.—Corpus Christi 2006, pet. denied) ......................73
Benavides v. Hunt,
79 Tex. 383, 15 S.W. 396 (1891) .......................................................................36
Bonham State Bank v. Beadle,
907 S.W.2d 465 (Tex. 1995) ..............................................................................73
Brannon v. Gulf States Energy Co.,
562 S.W.2d 219 (Tex. 1977) ........................................................................69, 71

City of Houston v. Clear Creek Basin Auth.,
589 S.W.2d 671 (Tex. 1979) ..............................................................................79
Covington v. Travelers Indem. Co.,
122 S.W.3d 330 (Tex. App.—Fort Worth 2003, no pet.).............................68, 69

Dallas Power & Light Co. v. Cleghorn,
623 S.W.2d 310 (Tex. 1981) ..............................................................................46

7
DeBord v. Muller,
446 S.W.2d 299 (Tex. 1969) ..............................................................................78

Decker v. Kirlicks,
110 Tex. 90, 216 S.W. 385 (1919) .........................................................36, 37, 49

DeWitt Cnty. Elec. Co-op., Inc. v. Parks,
1 S.W.3d 96 (Tex. 1999).....................................................................................74

Elliott v. Davis,
553 S.W.2d 223 (Tex. Civ. App.—Amarillo 1977, writ ref’d n.r.e.) ................. 68

Enter. Leasing Co. v. Barrios,
156 S.W.3d 547 (Tex. 2004) (per curiam) .........................................................53

In re Ford Motor Co.,
211 S.W.3d 295, 299 (Tex. 2006) (per curiam; orig. proceeding) ....................47
Fortis Benefits v. Cantu,
234 S.W.3d 642 (Tex. 2007) ..............................................................................47
Frost Nat’l Bank v. L & F Distribs., Ltd.,
165 S.W.3d 310 (Tex. 2005) (per curiam) .........................................................75
G.H. Bass & Co. v. Dalsan Properties-Abilene,
885 S.W.2d 572 (Tex. App.—Dallas 1994, no writ) ..........................................56
Guleke v. Humble Oil & Ref. Co.,
126 S.W.2d 38 (Tex. Civ. App.—Amarillo 1939, no writ)................................33
Gulf Prod. Co. v. Cruse,
271 S.W. 886 (Tex. Comm’n App. 1925) ..........................................................37

Gulf Prod. Co. v. Spear,
125 Tex. 530, 84 S.W.2d 452 (1935) ...........................................................64, 69
Henshaw v. Tex. Natural Res. Found.,
147 Tex. 436, 216 S.W.2d 566 (1949) ...............................................................35
Hilco Elec. Co-op., Inc. v. Midlothian Butane Gas Co.,
111 S.W.3d 75 (Tex. 2003)...........................................................................74, 75

8
Houston Exploration Co. v. Wellington Underwriting Ags., Ltd.,
352 S.W.3d 462 (Tex. 2011) ..............................................................................54

Houston Prod. Co. v. Mecom Oil Co.,
62 S.W.2d 75 (Tex. Comm’n App. 1933) ..............................................65, 66, 67

Humble Oil & Ref. Co. v. Harrison,
146 Tex. 216, 205 S.W.2d 355 (Tex. 1947) .......................................................57

Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am.,
341 S.W.3d 323 (Tex. 2011) ............................................................38, 40, 41, 53

Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc.,
962 S.W.2d 507 (Tex. 1998) ..............................................................................57

Key Operating & Equip., Inc. v. Hegar,
435 S.W.3d 794 (Tex. 2014) ..............................................................................66
King v. Dall. Fire Ins. Co.,
85 S.W.3d 185 (Tex. 2002).................................................................................45
Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth.,
320 S.W.3d 829 (Tex. 2010) ..............................................................................35
Knight v. Chicago Corp.,
188 S.W.2d 564 (Tex. 1945) ..................................................................36, 49, 50
Levetz v. Sutton,
404 S.W.3d 798 (Tex. App.—Dallas 2013, pet. denied)..............................78, 79
Lowder v. Schluter,
78 Tex. 103, 108, 14 S.W. 205, 206, rev’d on reh’g on other
grounds, 78 Tex. 109, 14 S.W. 207 (1890) ........................................................67

Lowder v. Schluter,
78 Tex. 103, 14 S.W. 205, rev’d on reh’g on other grounds, 78
Tex. 109, 14 S.W. 207 (1890) ......................................................................67, 69

Luccia v. Ross,
274 S.W.3d 140 (Tex. App.—Houston [1st Dist.] 2008, pet.
denied).................................................................................................................79

9
Maxvill-Glasco Drilling, Co., Inc. v. Royal Oil & Gas Corp.,
800 S.W.2d 384 (Tex. App.—Corpus Christi 1990, writ denied) ......................70

Mayfield v. de Benavides,
693 S.W.2d 500 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.) .......64, 65, 67

McConnell v. Southside Indep. Sch. Dist.,
858 S.W.2d 337 (Tex. 1993) ..............................................................................78

Moore v. Jet Stream Investments, Ltd.,
261 S.W.3d 412 (Tex. App.—Texarkana 2008, pet. denied) .............................70

Neece v. A.A.A. Realty Co.,
159 Tex. 403, 322 S.W.2d 597 (1959) ...............................................................53

Outdoor Sys., Inc. v. BBE, L.L.C.,
105 S.W.3d 66 (Tex. App.—Eastland 2003, pet. denied) ......................34, 35, 46
Pac. Mut. Life Ins. Co. v. Westglen Park Inc.,
160 Tex. 1, 325 S.W.2d 113 (1959) ...................................................................58
Paciwest, Inc. v. Warner Alan Props., LLC,
266 S.W.3d 559 (Tex. App.—Fort Worth 2008, pet. denied) ............................79
Paragon Gen. Contractors, Inc. v. Larco Constr., Inc.,
227 S.W.3d 876 (Tex. App.—Dallas 2007, no pet.) ..........................................77
Reilly v. Rangers Mgmt., Inc.,
727 S.W.2d 527 (Tex. 1987) ..................................................................47, 50, 76
REO Indus., Inc. v. Natural Gas Pipeline Co. of Am.,
932 F.2d 447 (5th Cir.1991) ...............................................................................35

Rogers v. Ricane Enters., Inc.,
772 S.W.2d 76 (Tex. 1989)...........................................................................42, 46
Ryan v. Kent,
36 S.W.2d 1007 (Tex. Comm’n App. 1931, judgm’t adopted) ..........................35
Stafford v. S. Vanity Magazine, Inc.,
231 S.W.3d 530 (Tex. App.—Dallas 2007, pet. denied)....................................78

10
T-Anchor Corp. v. Travarillo Assocs.,
529 S.W.2d 622 (Tex. Civ. App.—Amarillo 1975, no writ)..................37, 57, 62

Truly v. Austin,
744 S.W.2d 934 (Tex. 1988) ..............................................................................58

Universe Life Ins. Co. v. Giles,
950 S.W.2d 48 (Tex. 1997).................................................................................68

Vela v. Pennzoil Prod. Co.,
723 S.W.2d 199 (Tex. App.—San Antonio 1986, writ ref’d n.r.e.) ................... 68

Vinson Minerals, Ltd. v. XTO Energy, Inc.,
335 S.W.3d 344 (Tex. App.—Fort Worth 2010, pet. denied) ......................34, 35

W.T. Waggoner Estate v. Sigler Oil Co.,
118 Tex. 509, 19 S.W.2d 27 (1929) .............................................................36, 47
Wagner & Brown, Ltd. v. Sheppard,
282 S.W.3d 419 (Tex. 2008) ..............................................................................70
Walker v. Fed. Kemper Life Assurance Co.,
828 S.W.2d 442 (Tex. App.—San Antonio 1992, writ denied) .........................33
Williams Consol. I, Ltd./BSI Holdings, Inc. v. TIG Ins. Co.,
230 S.W.3d 895 (Tex. App.—Houston [14th Dist.] 2007, no pet.) ................... 32
Worldwide Asset Purchasing, L.L.C. v. Rent-A-Center E., Inc.,
290 S.W.3d 554 (Tex. App.—Dallas 2009, no pet.) ..........................................74
XTO Energy, Inc. v. Pennebaker,
07-10-00396-CV, 2011 WL 6846196 (Tex. App.—Amarillo Dec.
29, 2011, no pet.) (mem. op.) .............................................................................34

Statutes
Tex. Prop. Code §§ 22.021-0.24 ..............................................................................71

Tex. Prop. Code § 22.021(a) ....................................................................................71

Other Authorities
41 Tex. Jur. 3d Forfeitures and Penalties § 6 (1998) ...............................................35

11
Patrick H. Martin & Bruce M. Kramer, 3 Williams & Meyers, Oil and
Gas Law § 656.2 (2008) .....................................................................................34

12
 STATEMENT OF THE CASE

Nature of the Case Oil-and-gas lease dispute

Trial Court 49th District Court, Webb County, Hon. Joe
Lopez

Trial Court Disposition Summary judgment in favor of plaintiff, Justapor,
Ranch Company, L.C. In its judgment the trial
court:

• Declared that the mineral lease terminated
on March 2, 2012 and that ownership of
minerals reverted to Justapor;
• Awarded more than $12 million from
Escondido to Justapor in trespass damages
consisting of all production proceeds for all
oil-and-gas sales from March 2, 2012 to
August 2014. The judgment did not credit
Escondido for either the costs of production
or for improvements;
• Awarded Justapor all production proceeds
after August 2014 until the date Escondido
relinquishes possession, again with no
deductions for costs or improvements;
• Declared Escondido a bad-faith trespasser
at all times; and
• Ruled that Escondido takes nothing on its
counter claims, which means it receives
nothing for its $33 million in
improvements.

CR3:1859-62. The court severed Justapor’s
claims for exemplary or punitive damages (based
on the claim of bad-faith trespass) and its claims
for attorney’s fees, expert witness fees, and
accounting costs. CR3:1897-98. Those claims are
now stayed.

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 ISSUES PRESENTED

1. Lease termination. Did the trial court err in granting Justapor’s

motion for summary judgment and in denying Escondido’s cross motion for partial

summary judgment? Specifically, did it err in ruling that the Justapor lease

terminated based on an underpayment of royalties, and in granting the relief that

flowed from that ruling, when:

• paragraph XIV of the lease did not provide that an underpayment of

royalties or failure to reconcile an underpayment terminated the lease;

• Justapor’s claim of termination turns on words in the lease that do not

support termination or, alternatively, are ambiguous; and

• equity does not favor termination and forfeiture here?

2. Bad-faith trespass. Did the trial court err in declaring Escondido a

bad-faith trespasser as a matter of law when (1) Escondido lawfully exercised its

right to possession when it entered the property, and (2) Escondido presented

evidence that it did not believe the lease terminated, which negates bad faith?

3. Vacancy tract. Did the trial court err in rendering summary judgment

on Justapor’s declaratory judgment claim? Further, did the trial court err in

awarding specific performance regarding conveyance of interests in the “vacancy

tract?”

14
 STATEMENT OF THE FACTS

Overview

This appeal concerns an oil-and-gas lease between Justapor Ranch

Company, L.C. (the lessor) and Escondido Resources II, L.L.C. (the lessee).

Escondido spent more than $33 million to drill seven gas wells and to make other

capital improvements to the property. CR3:1149 (¶5). Escondido paid Justapor

more than $5.7 million in royalties for the first five years of production. CR3:1148.

But Justapor stands to profit much more on its legal claims that the lease

terminated in 2012 and that Escondido has been a bad-faith trespasser. The reason?

As Justapor reads the lease, royalties were underpaid by about $81,000. CR3:1148;

CR1:331-332. And as Justapor reads the lease, any amount of underpayment not

reconciled by March 1 of any year terminates the lease. The trial court agreed,

granting summary judgment that:

• the lease terminated on March 2, 2012;
• Escondido owes more than $12 million in gross production proceeds from
March 2, 2012 through August 2014 with no deduction for Escondido’s
costs of production;
• Escondido owes all gross production proceeds from August 2014 through
the date Escondido relinquishes possession, again with no deductions;
• Escondido recovers none of its $33 million in improvements; and
• Escondido faces punitive damages in a severed proceeding because the trial
court ruled it was a bad-faith trespasser as a matter of law.

CR3:1859-61; 1796-99.

15
The parties

Justapor owns an 803-acre ranch in Webb County. CR3:1325 (¶1). The sole

owner of Justapor is Jimmy Jones. CR3:1022. Jones is a trial lawyer whose

practice includes “land, oil and gas.” CR3:1023.

In May 2008 Jones contacted Escondido, an oil-and-gas production and

development company, to ask whether it was interested in leasing mineral interests

on the ranch. CR3:1325 (¶2).

Lease negotiation and terms

In early June 2008, when Jones was discussing with Escondido a possible

lease of minerals from Justapor, Jones also offered to represent Escondido as its

attorney in negotiating other oil and gas leases. CR3:1328 (¶¶12-13); CR3:1325-26

(¶¶3-5). Beginning in mid-June, Jones represented Escondido in negotiating two

other leases. CR3:1328 (¶13). As compensation, Escondido agreed to Jones’

request to give him an overriding royalty interest on one lease. CR3:1328 (¶14).

During this same time, Jones also negotiated his own lease, for Justapor,

with Escondido’s Vice President, David Wrather. CR3:1325 (¶1-2). Escondido was

not represented by separate counsel in negotiating the Justapor lease, and Jones

never suggested that his client retain separate counsel. Id. (¶2). Jones drafted both

the lease and an amendment that the parties signed on the same day, June 24, 2008.

CR3:1325-26. This dispute turns on three sections of the lease and the amendment.

16
 1 – Gas-royalty provision and its amendment—Paragraph III(b)

Jones drafted a gas-royalty provision that appeared verbatim in the ultimate

lease. CR3:982 (¶III(b)); CR3:1231-32 (¶III(b); CR3:1325 (¶3). This paragraph,

III(b), provided that Escondido shall calculate and pay a 25% royalty on gas from

the lease based on the highest of four price measures:

... Lessee shall calculate and pay royalties to Lessor on One-Fourth
(1/4th) of all gas produced from this lease and its constituents and
products sold or used therefrom, which royalties shall be calculated
and paid to Lessor based upon the highest of (i) the CURRENT
MARKET VALUE of such gas production from this lease which is
sold by, through or under Lessee or used by, through or under Lessee,
(ii) the CURRENT HOUSTON SHIP CHANNEL PRICE for such gas
production, as hereinafter defined, or (iii) the CURRENT
PROCEEDS REALIZED BY LESSEE for such gas production,
without deduction of any costs or expense except as hereinafter
stipulated or, (iv) the highest sales price of any gas were gas produced
from the property could be present when sold to a third party.

CR3:982 (¶III(b)). The first three pricing measures—CURRENT MARKET

VALUE, CURRENT HOUSTON SHIP CHANNEL PRICE, and CURRENT

PROCEEDS REALIZED BY LESSEE—are further defined in part III(b). Id. But

the fourth pricing measure—part III(b)(iv)—is not defined in the lease and is not a

customary royalty provision. Id.; CR3:1137 (¶2).

Wrather told Jones that Escondido did not want to base royalty payments on

the highest of these four price measures, but instead wanted to base the royalty on

the sale price Escondido had negotiated with a purchaser, Enterprise. CR1325 (¶4).

When the parties signed the lease in June 2008, the Enterprise pipeline was the

17
only market readily available to purchase and transport gas from the Justapor

Ranch. CR3:1326 (¶5). Wrather sent Jones Enterprise’s purchase terms. Id.;

CR3:1274.

Jones responded that Justapor would agree to a royalty based on the

Enterprise price, but only for as long as Escondido held the lease and did not

assign it to another party. CR3:1325 (¶4). To accomplish this, Jones proposed a

non-assignable amendment that (1) would incorporate the pricing terms of

Escondido’s agreement with Enterprise, but (2) would apply only to Escondido,

not any assignee. Id. The parties ultimately agreed to an amendment “to provide a

special royalty pricing provision, based on the Enterprise price.” CR3:1326 (¶4).

Jones drafted this amendment. Id. CR3:1325 (¶4).

This special pricing provision was reflected in the following sentence of the

lease amendment:

Provided however, Lessee shall have the right to enter into gas sales’
contracts that will determine the price upon which gas royalty is
calculated if such contracts provide no less than a price
redetermination every six months and provide the following minimum
terms....

CR3:1015 (minimum terms omitted); CR3:1326 (¶5). But the amendment, as

drafted by Jones, placed this provision in a paragraph labeled as an amendment to

Paragraph III “(b) ii.” CR3:1014-15. It appeared at the end of a long paragraph that

18
defined “HOUSTON SHIP CHANNEL PRICE” using the same language as the

original lease. CR3:1015.

Escondido understood that the amendment’s special pricing provision was a

substitute for all four pricing provisions in Paragraph III(b) of the lease. CR1326

(¶5). But Justapor later took the position that the purpose of the amendment was

“to amend specifically the Houston Ship Channel price to reflect what they were

getting from Enterprise.” CR3:1036.

2 – Accounting and adjustment provision—Paragraph III(g)

Oil-and-gas producers frequently receive adjusted information from

purchasers that changes the volume and price on which a royalty payment was

based, often months after the royalty was paid. CR3:1149 (¶6). And producers

often make mistakes in royalty calculations or disagree lessors about prices,

volumes, or methodology used to calculate royalty. CR3:1138 (¶7). Accordingly,

paragraph III(g) of the lease is a lengthy clause that addresses a number of subjects

relating to discrepancies in royalty payments, such as accounting for royalties,

notice and disputes over royalty deductions, adjustments for overpayment of

royalty, and adjustments for underpayment. CR3:987-98 (III(g)). Several aspects

of this clause are relevant.

19
 Accounting—Escondido was required to provide Justapor with a detailed

accounting of specific aspects of the royalty calculation on a monthly basis.

CR3:987 (III(g)).

Overpayment—Paragraph III(g) also addressed how the parties would

reconcile overpayment of royalty:

If it is agreed by Lessor or the royalty owner in question that a royalty
owner was overpaid, then the overpaid royalty owner has the option of
repaying such overpayment or allowing Lessee to recoup such
overpayment out of future royalty payments on a schedule and in
monthly amounts agreed to by such overpaid royalty owner and
Lessee. Any overpaid royalty owner shall not be charged interest on
overpaid sums.

CR3:987-88 (III(g)).

Underpayment—Paragraph III(g) also addressed how the parties would

reconcile underpayment of royalty:

In the event the prices and/or volumes used by Lessee in calculating
and payment of production royalties paid to Lessor was less than
those required to be paid, Lessee shall issue its check to make up the
difference on or before March 1st of each year.

Id. Justapor has conceded that no language in paragraph III(g) says the failure to

reconcile underpayment by March 1 terminates the lease. CR3:1043:18-22.

Escondido reviewed prices and volumes on a monthly basis. CR3:1117:24-

1118:14. Over the life of the lease, Escondido made 15 reconciliation payments to

Justapor, which totaled more than $441,000. CR3:1149 (¶8).

20
 3 – Nonpayment provision—Paragraph XIV

Paragraph XIV of the lease addressed the nonpayment of royalties.

CR3:996-97. The following is the relevant part of this paragraph, with the key

disputed language in bold:

Royalties payable to Lessor in the manner hereinabove provided
for are due and payable to Lessor within a period of sixty (60)
days following each month’s production of oil or gas produced
and sold from the premises. Thereafter, such payments shall be
delinquent and will bear interest at the rate of Ten (10%) percent per
annum, compounded monthly, until paid. In the event that such
royalties are not paid and become delinquent, and there is no title
dispute or title defect, this lease shall terminate ipso facto on the
date that such royalties were due and not paid. In the event such
royalties are not paid and become delinquent, Lessor without other
notice than this paragraph, shall be authorized to file suit in the
District Court of Webb County, Texas, for recovery of such
delinquent royalties....

CR3:996-97 (¶XIV) (bold added, underlining in original).

Justapor has conceded that Escondido never failed to pay monthly royalties

within 60 days following monthly production, as Article XIV requires.

CR3:1041:17-1042:3. Instead, it claims that some royalties were paid in the wrong

amount. Id.

While Jones and Wrather were negotiating the Justapor lease, Jones told

Wrather that he had drafted a “tough agreement” in case Escondido ever assigned

its rights under the Lease Agreement to another party. CR3:1329 (¶17). But Jones

told Wrather that he would work out with Escondido any issues that might arise

21
between them. Id. Based on that conversation and the fact that Jones was

Escondido’s attorney in other matters, Wrather believed the parties would

amicably resolve any differences. CR3:1329. Jones never mentioned that he

believed the termination provision meant that the lease could terminate for

underpayment of royalties, no matter how small. CR3:1329 (¶17).

Escondido drilled wells, made site improvements, and paid royalties

After the lease was signed, Escondido made more than $33.1 million in

improvements to the Justapor Ranch. CR3:1149 (¶5); CR3:1112:24-1113:11.

These included roads and ponds as well as seven wells. CR3:1113:10-16. Of this

amount, about $10 million was spent on drilling costs and other improvements

after March 2, 2012, the date on which Justapor claims the lease terminated.

CR3:1220-21.

To transport gas from Justapor Ranch to Enterprise, Escondido built a meter

site and a pipeline across the ranch to connect with the Enterprise pipeline system.

CR3:1326 (¶6). To facilitate this, Escondido and Justapor signed a Surface Site

Agreement, which Escondido then assigned to Enterprise. Id.; CR3:1282-88.

Escondido first paid royalties in June 2009. CR3:1148 (¶3). In 2011

Enterprise reduced the amount of gas it purchased from Escondido because of

capacity constraints on its pipeline system. CR3:1326 (¶7). To make up for the

22
reduction in sales to Enterprise, Escondido sold gas from the Justapor Ranch to

Kinder Morgan. Id.

From its first production in June 2009 until April 2014, Escondido paid

Justapor more than $5.7 million in royalties. CR3:1148 (¶3). Justapor has not

disputed the amount of royalties that were paid for production occurring before

October 2011. See CR3:330-31.

Jones first claims that the lease terminated

Before the current dispute arose, Justapor claimed that the lease terminated

on another ground.

In June 2011, Jones told Escondido that the lease had terminated “ipso

facto” when Escondido purportedly underpaid a compensatory royalty under article

V of the lease. CR3:1070:5-1071:11; CR3:1072:11-1074:17. But Jones later

admitted that the lease did not terminate as the result of an underpayment.

CR3:1073:3-1074:13. The parties ultimately resolved their disagreement over the

compensatory royalty by letter agreement dated August 9, 2011. CR1:445-48;

CR3:1308-11.

As part of this letter agreement, Escondido agreed to convey, to an entity of

Justapor’s choice, certain interests in a 42-acre tract known as the “vacancy tract.”

CR3:977. Two different versions, both initialed and signed on the same date, use

different words to memorialize the parties’ agreement. One version requires

23
Escondido to convey mineral interests it already has acquired in the Justapor

Ranch “as well as all other mineral mineral [sic] interests [Escondido] acquire[s]

in this land after [Justapor’s] approval & consent.” CR3:1310 (emphasis added).

The other version requires Escondido to convey mineral interests it already has

acquired in the Justapor Ranch “as well as all other additional interests we acquire

in this land after your approval and consent.” CR1:447 (emphasis added).

Escondido gave Jones executed deeds conveying all mineral interests owned or

subsequently acquired by Escondido in the Vacancy Tract. CR3:1327-28 (¶11).

Justapor later asserted that Escondido must convey not only mineral interests

acquired in Justapor Ranch, but also all leasehold interests. CR1:255.

Jones’ actions prevent Escondido’s sales to Enterprise

In October 2011 Enterprise announced it would resume purchasing gas from

the Justapor Ranch because its capacity constraints had lifted. CR3:1326 (¶8). But

in the same month, Jones sent Enterprise a letter announcing that the Enterprise

sales meter Surface Site Agreement between Justapor and Enterprise terminated

because Enterprise missed one $4,500 yearly lease payment in May. CR3:1299,

1326 (¶8), 1092:5-11, CR3:1282. Jones also told Enterprise that it could not use

the meter and that he was going to seize its equipment. CR3:1092:7-19. The

Surface Site Agreement did not provide for automatic termination upon default,

but instead provided that Justapor must give notice and an opportunity to correct

24
the late payment before the lease terminated. RR3:1284 (¶15). Justapor gave no

notice and no opportunity to cure, and refused to accept Enterprise’s late rental

check. RR3:1054:17-1059:13. As a result of Jones’ claim of termination,

Enterprise could not purchase gas from the Justapor Ranch. CR3:1326-27 (¶8).

Unable to sell to Enterprise, Escondido could only sell to Kinder Morgan at

a lower daily spot price or shut in the wells until it found a purchaser for a higher

price. CR1:341:5-13; CR3:1327 (¶9). It began negotiating sales to other higher-

priced markets in order to sell several months later. Id. In the meantime, rather than

sell to Kinder Morgan at the lower daily spot price, Escondido proposed to shut-in

the wells until it could finalize these higher-price deals or secure a new surface-site

agreement between Jones and Enterprise. CR3:1326-27 (¶¶8-9). Escondido also

told Jones that the price to be realized from the sale of gas at the daily spot price

would be lower. Id. (¶9). But Jones insisted that Escondido sell gas at the lower

daily spot price and not shut-in the wells for any time. Id.

Escondido made sales at the lower daily spot price for three months

beginning in October 2011, which resulted in royalties to Justapor that were $3,851

less than the Enterprise special pricing provision set out in the amendment.

CR1:340:13-23; CR3:1148 (¶4). It has not made up this $3,851 underpayment

because Justapor caused it to receive a lower price and because Jones verbally

25
agreed to the royalty he was going to get based on the lower daily spot price.

CR1:340:20-341:20; CR3:1089:13-20.

Dispute over royalties for production months after January 2012

In May 2013, Justapor hired Charlie Graham to audit Escondido’s records

regarding the calculation of royalties. CR3:1025:24-1026:18. Graham determined

that Escondido’s calculations of royalties on a price-received basis were correct.

CR3:1337:8-19; 1338:8-24. Graham did not audit the royalty calculations on other

bases, such as market value or the Houston Ship Channel price. CR3:1336:6-17.

Graham believed that Escondido was trying to properly calculate the quantity and

price of gas sales. CR3:1339:18-20.

Justapor sued Escondido in August 2013, claiming the lease had terminated

due to an underpayment of royalties. CR1:22, and 25. Before suing, Justapor gave

Escondido no notice that it believed Escondido had underpaid gas royalties.

CR3:1044:20-1045:9. And it gave Escondido no opportunity to cure. Id.

Justapor initially claimed that the lease terminated “as early as April 2012”

because royalty payments for production beginning in February, 2012, were based

on a weighted average price in breach of pricing provision III(b)(iv). RR3:1304,

1305. Justapor claimed that the lease terminated because of the underpayment

alone. RR3:1304. Justapor later amended its claim to assert, for the first time, that

an underpayment triggered termination if it was not corrected by March 1 of the

26
following year. CR1:150. Later, Justapor’s expert identified two periods in which

he claims Escondido underpaid the royalty:

• October 2011 – January 2012 production: alleged underpayment of
$3,851;

• February 2012 – January 2013 production: alleged underpayment of
$77,107.

CR1:320, 331-32; CR3:1148 (¶4).

The parties’ experts disagree over whether royalties were underpaid at all

between February 2012 and January 2013. If the special pricing provision in the

amendment replaced the lease’s royalty price entirely, as Escondido contends, then

Escondido correctly calculated the royalty based on current proceeds. CR1150

(¶11). Justapor presented no summary-judgment evidence of any underpayment

based on that measure. But if the special pricing provision in the lease amendment

replaced only the Houston Ship Channel Price, as Justapor contends, then the

amount of these underpayments was disputed by two experts. According to

Justapor’s expert, the amount of underpayment would be $77,107. CR1:331;

CR3:1148 (¶4). But according to Escondido’s expert, even assuming Justapor’s

interpretation of the contract, the correct amount of underpayment would be

$22,107. Id. (¶¶11, 13).

27
Summary judgment proceedings and final judgment

Justapor and Escondido filed cross motions for summary judgment on the

issue of whether the lease had terminated. The trial court denied Escondido’s

motion, granted Justapor’s motion, and signed a final judgment in Justapor’s favor.

CR3:1796-99; 1857-62. The court ruled that the lease terminated on March 2, 2012

and that all of Escondido’s interests under the lease reverted to Justapor at that

time. CR3:1859.

The court declared Escondido a bad-faith trespasser and that it has never

been a good-faith trespasser. CR3:1859. As a result of that ruling, the court

awarded not only an accounting of all underpaid royalties, but also awarded

Justapor all of Escondido’s post-March 2, 2012 production proceeds, with no

deduction for expenses. CR3:1861. The amount awarded through August 31, 2014

was more than $12 million, with an unspecified award of all additional production

proceeds from that date through the date Escondido relinquishes possession. Id.

The court dismissed Escondido’s counterclaims, including its claims for

reimbursement based on Escondido’s improvements to the property. CR3:1860;

CR1:142-43. The court severed Justapor’s claims to recover punitive damages and

attorney’s fees based on this judgment. CR3:1897-1900.

Justapor also moved for summary judgment on its claim for declaratory

judgment, asking the court to interpret the letter agreement as requiring Escondido

28
to convey both “mineral and leasehold” interests acquired by Escondido in

Justapor Ranch. CR1:155 (¶34), 254-55. The trial court granted summary judgment

declaring that the letter agreement requires conveyance of both mineral and

leasehold interests acquired by Escondido in the Justapor Ranch. CR3:1797. In

addition, the trial court awarded specific performance requiring Escondido to

convey these interests to Justapor on or before the date the judgment becomes final

and non-appealable. CR3:1858-59.

29
 SUMMARY OF ARGUMENT

Termination and forfeiture. Texas law requires a heightened level of

clarity in lease language before an automatic-termination clause can legally kill a

lease. The point is to disfavor forfeiture of a lessee’s rights unless the lessor makes

explicit that draconian intent. Under Texas law, an enforceable termination clause

must be clear, unequivocal, and unambiguous.

The termination clause in this lease fails that test. Paragraph XIV does not

provide that a payment pennies less than owed divests the lessee of its rights,

converts its capital investments, and threatens punitive damages. Rather, it

terminates only for nonpayment of monthly royalties. It specifically addresses

instances in which the lessor goes to the mail, only to find no monthly check. It

says that the lease will terminate if “such royalties are not paid.…”

Paragraph III(g) is the remedy for payments made that are less than owed—

payments that are “less than those required to be paid.” Nothing in that paragraph

even hints at the capital punishment Justapor seeks. The nonpayment paragraph

provides for termination; the underpayment paragraph does not.

The trial court’s ruling that the lease terminated based on underpayment of

royalties violates basic rules governing lease termination and forfeiture provisions.

It blurs the line in the oil-and-gas industry that distinguishes royalty nonpayment

from underpayment. Because the trial court’s core legal ruling is wrong, Justapor’s

30
judgment must be reversed. And Escondido is entitled to summary judgment that

the lease survives.

Bad faith. Even if the lease had terminated as a matter of law, the trial court

wrongly concluded that Escondido was a bad-faith trespasser as a matter of law.

Escondido entered into possession of the land under the Justapor lease before any

adverse claim and long before Jones embarked on his windfall-litigation strategy.

Escondido did not believe the lease terminated—for good reason that should

survive even an affirmance of the trial court’s core holding. Bad faith is inherently

a fact question for a jury. The evidence here could not conclusively establish that

Escondido was a bad-faith trespasser.

Vacancy tract conveyance. The trial court also erred by granting summary

judgment on Justapor’s declaratory judgment claim regarding the vacancy tract,

because the parties’ letter agreement unambiguously requires Escondido to convey

only mineral interests, not leasehold interests.

Appellate courts exist for cases like this.

31
 ARGUMENT

Standard of Review

“When both parties move for summary judgment, each party must carry its

own burden, and neither can prevail because of the failure of the other to discharge

its burden.” Williams Consol. I, Ltd./BSI Holdings, Inc. v. TIG Ins. Co., 230

S.W.3d 895, 900 (Tex. App.—Houston [14th Dist.] 2007, no pet.). “Because each

party was a movant, the burden for each was the same: to establish entitlement to a

summary judgment by conclusively proving all elements of the claim or defense as

a matter of law.” Id. Thus, the questions presented by the standard of review are:

• Issue 1: Termination: Did the lease terminate as a matter of law? Or did the

evidence conclusively establish that it did not terminate?

• Issue 2: Bad faith: Did the summary-judgment evidence conclusively

establish Escondido was a bad-faith trespasser?

• Issue 3: Vacancy tract: Did Justapor conclusively establish its

interpretation of the letter agreement or its (unpleaded) right to specific

performance?

32
I. The trial court erred by granting summary judgment that the lease
terminated because Escondido did not correctly reconcile royalty
underpayment.

This is not an ordinary contract construction case. Under Texas law, lease

language must meet a heightened level of clarity and plain language in order to

provide for automatic termination. If the conditions for termination are not clear,

unequivocal, and unambiguous, the lease will not terminate. Nor will termination

be enforced if forfeiture would be inequitable.

The trial court erred in granting summary judgment that the lease

terminated, and it erred in denying Escondido’s cross-motion for partial summary

judgment that it did not terminate, for three independent reasons:

(1) the lease did not clearly, unequivocally, and unambiguously provide for

termination based on failure to reconcile underpayment of royalty;

(2) Justapor did not conclusively establish that Escondido failed to correctly

reconcile any underpayment of royalty; and

(3) termination and forfeiture are impermissible under Texas law because

they would be inequitable on these facts.

A. Texas law disfavors lease termination and prohibits termination
absent clear, unequivocal, and unambiguous lease language.

The automatic termination of a lease or other contract is a forfeiture. Walker

v. Fed. Kemper Life Assurance Co., 828 S.W.2d 442, 446 (Tex. App.—San

Antonio 1992, writ denied); Guleke v. Humble Oil & Ref. Co., 126 S.W.2d 38, 40

33
(Tex. Civ. App.—Amarillo 1939, no writ). The forfeiture sought by Justapor is

disproportionately large. Under Justapor’s reading of the contract, Escondido’s

failure to correct any underpayments, no matter how small, causes Escondido to

forfeit its rights and lose its investment of more than $33 million in this lease,

subjects it to trespass damages in excess of $12 million, and exposes it to punitive

damages.

Texas law disfavors lease forfeiture. XTO Energy, Inc. v. Pennebaker, 07-

10-00396-CV, 2011 WL 6846196, at *3 (Tex. App.—Amarillo Dec. 29, 2011, no

pet.) (mem. op.). “Forfeitures are not favored in Texas, and contracts are construed

to avoid them.” Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774

(Tex. 2009). In general, “[f]orfeiture is a harsh and punitive remedy, and it is not

favored in law or equity.” Outdoor Sys., Inc. v. BBE, L.L.C., 105 S.W.3d 66, 70

(Tex. App.—Eastland 2003, pet. denied). And specifically with regard to the claim

here, Texas law applies a rule of strict construction to “forfeiture provisions based

on failure to make proper and timely payment of royalty.” Vinson Minerals, Ltd. v.

XTO Energy, Inc., 335 S.W.3d 344, 354 (Tex. App.—Fort Worth 2010, pet.

denied) (quoting Patrick H. Martin & Bruce M. Kramer, 3 Williams & Meyers, Oil

and Gas Law § 656.2 (2008)).

34
 So unlike an ordinary contract dispute, special rules of construction—

applying a heightened standard—apply to lease forfeitures. These principles

include the following:

1. All doubts resolved against forfeiture. “Texas courts will not construe a

contract to result in a forfeiture unless it cannot be construed in any other way.”

Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 841-42

(Tex. 2010) (quoting REO Indus., Inc. v. Natural Gas Pipeline Co. of Am., 932

F.2d 447, 454 (5th Cir.1991). Thus, “If the terms of a contract are fairly susceptible

of an interpretation which will prevent a forfeiture, they will be so construed.”

Henshaw v. Tex. Natural Res. Found., 147 Tex. 436, 444, 216 S.W.2d 566, 570

(1949). This rule has been applied specifically to oil-and-gas leases. If a “lease

contract is susceptible of two reasonable interpretations, it should be construed as

to prevent a forfeiture.” Vinson Minerals, 335 S.W.3d at 354 (citing Ryan v. Kent,

36 S.W.2d 1007, 1011 (Tex. Comm’n App. 1931, judgm’t adopted)).

2. Clear and unequivocal language required. The right to forfeiture may

be found only in language that is plain, clear, and unequivocal. Outdoor Sys., 105

S.W.3d at 71. The cause of forfeiture must be “plainly and clearly stated,” and “the

time definitely fixed.” Id. (quoting 41 Tex. Jur. 3d Forfeitures and Penalties § 6

(1998)). As the Supreme Court of Texas has recognized:

The authority to forfeit a vested right or estate should not rest in
provisions whose meaning is uncertain and obscure. It should be

35
 found only in language which is plain and clear—whose unequivocal
character may render its exercise fair and rightful.

W.T. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 522, 19 S.W.2d 27, 31

(1929) (quoting Decker v. Kirlicks, 110 Tex. 90, 94, 216 S.W. 385, 386 (1919)).

When the contractual termination provision is not clear, forfeiture is

forbidden. See, e.g., Benavides v. Hunt, 79 Tex. 383, 392, 15 S.W. 396, 399 (1891)

(holding that termination could not be based on a condition requiring lessee “to use

all economy in the conduct and management of said mining enterprise” because

that language is “too uncertain to recognize as a condition on which a forfeiture

might rest.”).

3. Forfeiture cannot result from an ambiguous provision. It follows from

the two previous rules that, “[i]f the provision is ambiguous, that alone condemns it

as a forfeiture provision.” Decker v. Kirlicks, 110 Tex. 90, 94, 216 S.W. 385, 386

(Tex. 1919). Forfeiture cannot be based on the breach of an ambiguous provision.

“[I]f there is any uncertainty in the language [of a mineral lease] so as to make it

ambiguous or of doubtful meaning,” a request for forfeiture should be denied.

Knight v. Chicago Corp., 188 S.W.2d 564, 566 (Tex. 1945) (emphasis added).

Given the gravity of terminating a contract, this rule makes sense:

A forfeiture should rest upon surer ground. Where a contract is so
vague in its terms that a court cannot determine its meaning, it would
be unjust to enforce a forfeiture under it against one whose only fault
has been to possibly mistake its meaning. Forfeitures are harsh and
punitive in their operation. They are not favored by the law, and ought

36
 not to be. The authority to forfeit a vested right or estate should not
rest in provisions whose meaning is uncertain and obscure.

Decker, 110 Tex. at 94, 216 S.W. at 386.

4. Consider general customs and practices. In construing forfeiture

provisions in lease contracts, courts will take into consideration general customs

and practices, as well as the law affecting the matters contracted about, and will

presume that the parties contracted with such customs, practices, and laws in mind,

unless the contrary clearly appears from the terms of the contract. Gulf Prod. Co. v.

Cruse, 271 S.W. 886, 886-87 (Tex. Comm’n App. 1925).

5. No forfeiture if inequitable. Ordinarily, Texas courts resolve issues of

construction without reference to equity. But forfeiture lies at the intersection of

law and equity, and courts consider the equities of an asserted forfeiture.

“Although parties may contract to provide for forfeiture upon default, where

equities are shown which justify a continuation of the contract rather than

forfeiture of it, the forfeiture will be prevented.” T-Anchor Corp. v. Travarillo

Assocs., 529 S.W.2d 622, 627 (Tex. Civ. App.—Amarillo 1975, no writ) (citing

authorities and holding that equities prevented forfeiture).

B. Paragraph XIV does not provide that the lease terminates for a
failure to reconcile underpaid royalties.

Paragraph XIV of the lease does not clearly, unequivocally, and

unambiguously provide for termination based on either an underpayment of

37
royalties or a failure to reconcile underpayment. Instead, it addresses only

nonpayment of monthly royalties. In this particular lease, nonpayment and

underpayment are treated separately and differently—(1) addressed in separate

provisions, (2) referred to with different terminology, (3) and dealt with under

different procedures, timelines, and consequences. The plain language of

paragraph XIV addresses only nonpayment of royalties. No part of paragraph XIV

refers in any way to underpayment, the underpayment provision, or a failure to

reconcile underpayment.

1. The lease treats underpayment and nonpayment differently,
with different words in different provisions.

To construe a contract, Texas courts “examine and consider the entire

writing in an effort to harmonize and give effect to all the provisions of the

contract so that none will be rendered meaningless.” Italian Cowboy Partners, Ltd.

v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011). The beginning of

this analysis is “the contract’s express language.” Id.

This lease contains two separate provisions with different procedures for (1)

adjustments of past royalty payments including overpayment and underpayment,

and (2) nonpayment. The key language of these provisions is as follows:

38
III(g)—royalty adjustments, overpayment, XIV—nonpayment
and underpayment CR3:996-97 (¶XIV) (bold emphasis
CR3:987-88 (¶III(g)) (emphasis added) added).

“In accounting to Lessor for royalties payable“Royalties payable to Lessor in the
hereunder, Lessee shall be required, on a manner hereinabove provided for
monthly basis, if requested by Lessor, to are due and payable to Lessor
account to Lessor for each well on leased within a period of sixty (60) days
premises based upon the volume of following each month’s production
production…the BTU…content of such of oil or gas produced and sold from
production, the royalty interest in such the premises. Thereafter, such
production and the amount owed and paid to payments shall be delinquent and will
such royalty interest owner.…” bear interest at the rate of Ten (10%)
percent per annum, compounded
“If it is agreed by Lessor or the royalty monthly, until paid. In the event that
owner in question that a royalty owner was such royalties are not paid and
overpaid, then the overpaid royalty owner has become delinquent, and there is no
the option of repaying such overpayment or title dispute or title defect, this lease
allowing Lessee to recoup such overpayment shall terminate ipso facto on the
out of future royalty payments on a schedule date that such royalties were due
and in monthly amounts agreed to by such and not paid. In the event such
overpaid royalty owner and Lessee.” royalties are not paid and become
delinquent, Lessor without other
“In the event the prices and/or volumes notice than this paragraph, shall be
used by Lessee in calculating and payment authorized to file suit in the District
of production royalties paid to Lessor was Court of Webb County, Texas, for
less than those required to be paid, Lessee recovery of such delinquent
shall issue its check to make up the royalties.…”
st
difference on or before March 1 of each
year.”

Several differences between paragraphs III(g) and XIV demonstrate that

these paragraphs address distinct subjects and have different effects.

a. The provisions use different words. The discussion of underpayment in

III(g) refers to an amount of payment: “payment of production royalties paid to

Lessor” that are “less than those required to be paid.” And other parts of paragraph

39
III(g) refer to adjustments to past royalty amounts for deductions, overpayment,

and underpayment. In contrast paragraph XIV expressly refers to a failure to pay

monthly royalties on time: “such royalties are not paid and become delinquent.”

CR3:996 (¶XIV).

The use of different phrasing is consistent with industry custom and usage.

The oil-and-gas industry does not equate an underpayment of royalty with a

nonpayment. CR3:1137 (¶3). Nor does the industry consider neglecting to

reconcile a prior underpayment as failing to make a payment at all. Id.

b. The provisions address different concepts. Just as the oil-and-gas

industry differentiates royalty nonpayment from royalty underpayment, CR1:1137

(¶3), so does this lease.

Paragraph III(g)—including parts not quoted above—addresses topics all

relating to adjustments to royalties. These topics include accounting, deductions,

withholding of taxes, reconciliation of overpayment, and reconciliation of

underpayment (“on or before March 1st of each year”). These detailed adjustment

provisions exist because gas purchasers frequently send the producer adjusted data

about volume or price many months after the royalty is paid, thus requiring a

royalty adjustment. CR3:1149 (¶6).

In contrast, paragraph XIV applies only to the deadline for monthly royalty

payments (“sixty (60) days following each month’s production”), and the

40
consequences of nonpayment. The first sentence provides when monthly royalties

are due—providing a different due date than reconciliation payments (60 days vs.

March 1st). CR3:996-97 (¶XIV). The second sentence addresses late-payment

interest for monthly royalties that are not paid—not reconciliation payments for

underpaid royalties. The third sentence addresses termination when “such

royalties” are not paid within 60 days. Id. And the final sentence authorizes a

particular venue for suit to recover “such royalties [that] are not paid.” Id.

Each sentence in paragraph XIV addresses only monthly royalty

nonpayment—the failure to meet the 60-day deadline. But here, monthly royalty

nonpayment is not at issue. Justapor admitted that Escondido always paid monthly

royalties within 60 days. CR3:1041:17-1042:3. Rather, because Justapor seeks to

recover for alleged underpayment of royalties, paragraph III(g) applies. It

addresses royalty adjustments and reconciliation of underpayment.

c. The provisions have different, inconsistent procedures for

underpayment and nonpayment. These two provisions provide separate paths for

(1) underpayment and adjustments, versus (2) nonpayment.

If Escondido underpays by using the incorrect price or volume, the

consequence is not termination but instead the covenant that Escondido will make

a reconciliation payment by March 1 of the following year. CR3:987-88 (¶III(g)).

Paragraph III(g) does not specify a remedy, termination or otherwise, for a breach

41
of that covenant, leaving available an ordinary action for breach of contract and

damages. See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex. 1989).

Unlike paragraph III(g), paragraph XIV does not provide a grace period until

the following March 1. Instead, it provides that the failure to meet the 60-day

deadline for monthly payment of royalties allows a series of immediate remedies:

(1) termination “on the date that such royalties were due and not paid,” (2)

immediate accrual of 10% interest, and (3) the immediate right to sue “without

other notice than this paragraph.” CR3:996-97 (¶XIV).

It would be inconsistent with the lease’s plain language to treat a breach of

paragraph III(g) as a trigger for termination under paragraph XIV. Paragraph III(g)

provides a grace period to make up underpayment and provides no express

remedies for a failure to make up underpayment above and beyond contract law. In

contrast, Paragraph XIV provides immediate and severe consequences, which

makes sense for nonpayment but not for a royalty payment that often later requires

adjustment. The two provisions in completely different parts of this contract do not

address the same subject.

d. Unlike the long process for adjusting underpayment, the remedy

of “ipso facto” termination is immediate and based on an instance that shows

an obvious breach. Under paragraph XIV “ipso facto” termination occurs

immediately. CR3:996-97 (¶XIV). Unless the event triggering termination would

42
be immediate and obvious, parties would have no marker to know that their legal

relationship has automatically changed.

Nonpayment of royalties within 60 days is exactly the sort of event that

would be instantaneously obvious to the parties so that they know termination has

occurred.

In contrast, an underpayment or failure to reconcile an underpayment is not

an immediately apparent breach and therefore cannot result in an instant lease

termination. If paragraph XIV applied to underpayment or the failure to make a

reconciliation payment by March 1, the lease could easily terminate without either

party knowing. But oil-and-gas producers frequently receive information from

purchasers many months later that affect the volume or price on which the payment

was made. CR3:1149 (¶6). Under Justapor’s interpretation, if such information

were received about a December royalty payment in the following April, for

instance, the lease would have terminated on March 2 without either party’s

knowledge. That interpretation is not what the contract says and is not reasonable.

An ipso facto termination provision provides a bright line that allows both

parties to know the lease has immediately terminated and to adjust their conduct

accordingly. Here, Justapor first claimed termination 20 months after the initial

underpayment and 18 months after the March 1 deadline for reconciliation

payments. CR1:22; CR3:1044:20-1045:9. Such a strained interpretation would

43
permit no-fault terminations that a producer who has invested more than $33

million in the lease has no ability to correct. It makes no sense to apply the ipso

facto termination language to underpayment or the failure to timely reconcile

underpayment.

2. Paragraph XIV terminates for nonpayment of royalties, not
underpayment.

Justapor initially asserted that the lease terminated ipso facto under

paragraph XIV when Escondido first made an underpayment. CR3:1304, 1307. But

Justapor later adjusted its interpretation, conceding that the lease does not

terminate immediately upon any underpayment. CR3:1027:18-1028:12;

CR3:1073:3-1074:13. Instead, Justapor now says that Escondido’s failure to

reconcile underpaid royalties by March 1 of the following year results in

termination. CR1:248-49; CR3:1027:18-1028:12; CR3:1073:3-1074:13.

The plain language of paragraph XIV has nothing to do with underpayment

at all—whether an underpayment by itself or a failure to reconcile an

underpayment. Instead, Paragraph XIV provides for termination when “such

royalties”—the monthly royalties due in 60 days discussed throughout the

paragraph—“are not paid and become delinquent.” CR3:996-97 (¶XIV) (emphasis

added).

Nothing in this paragraph refers back to the underpayment of royalties,

which is addressed separately in paragraph III(g). Under the express terms of

44
III(g), underpayment must be rectified by the March 1 deadline rather than a 60-

day deadline. CR3:988 (¶III(g)). The lease does not even use the same language in

paragraph XIV (“delinquent payments”) that it uses to describe underpayment in

paragraph III(g) (“royalties paid ... less than those required to be paid”). Compare

CR3:988 (¶III(g)) with CR3:996-97 (¶XIV). Instead, the only thing that triggers

termination is nonpayment—which occurs immediately when the monthly

royalties due in 60 days “are not paid and become delinquent.” CR3:996-97

(¶XIV).

If the lease were to terminate upon the date of any underpayment, the March

1 reconciliation deadline would be meaningless. A violation of paragraph XIV

results in immediate termination, immediate accrual of interest, and immediate

authorization to sue. CR3:996-97 (¶XIV). If those consequences also apply at the

moment Escondido makes any underpayment, then it would be meaningless to

provide a reconciliation procedure and a March 1 deadline for reconciliation

payments. A court should “give effect to all contract provisions, and render none

meaningless.” King v. Dall. Fire Ins. Co., 85 S.W.3d 185, 193 (Tex. 2002).

The parties did not draft the lease to terminate immediately upon

underpayment. Paragraph XIV does not provide for termination based on royalties

“not paid in whole or in part.” It does not provide for termination based on

royalties “paid less than those required to be paid.” And it does not provide for

45
termination based on nonpayment “of any amounts due to the Lessor hereunder.”

Cf. Outdoor Sys., 105 S.W.3d at 69. The parties did not use the sort of language

necessary to specify clearly and plainly that the lease terminates in the event of an

underpayment.

3. Paragraph XIV does not address remedies for failure to
reconcile underpayment.

Justapor’s new interpretation, advanced in its summary-judgment motion,

was that paragraph XIV is triggered by Escondido’s failure to make March 1

reconciliation payments. That interpretation is unreasonable for a number of

reasons.

First, it has no support in the plain language. No part of paragraph XIV

refers to reconciliation payments of underpaid royalties or their March 1 deadline.

Instead, the sentence about ipso facto termination uses the phrase “such royalties”

to refer to the monthly royalties due within 60 days under the prior sentences of the

paragraph. CR3:996-97 (¶XIV).

Second, Justapor’s interpretation also requires adding or implying language

to the lease. Courts “may neither rewrite the parties’ contract nor add to its

language.” Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 162 (Tex. 2003).

Specifically, when construing a lease, a court should not imply “terms in

opposition to the express language that the parties themselves have written into the

contracts.” Rogers, 772 S.W.2d at 79 (quoting Dallas Power & Light Co. v.

46
Cleghorn, 623 S.W.2d 310, 311 (Tex. 1981)). And because termination requires

plain and unequivocal language, courts cannot imply grounds for termination that

are not expressly stated in the termination provision. W.T. Waggoner Estate, 118

Tex. at 522, 19 S.W.2d at 31.

Yet Justapor’s interpretation would require that words be added. It would

require changing:

In the event that such royalties are not paid and become delinquent, ...
this lease shall terminate ipso facto on the date that such royalties
were due and not paid.

to add or imply the following highlighted language to the lease:

In the event that such royalties are not paid and become delinquent, or
in the event that underpayment of royalties are not reconciled by
March 1 of the following year under paragraph III(g) of this lease, ...
this lease shall terminate ipso facto on the date that such royalties
were due and not paid.

The parties could have written the highlighted language. But it does not appear in

this lease. Nor should the Court add it or imply it, especially when lease

termination under Texas law requires clear and unequivocal language.

Third, Justapor’s interpretation is unreasonable and oppressive. A court

should avoid an interpretation of a contract that renders it “unreasonable,

inequitable, or oppressive.” Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530

(Tex. 1987) (cited in Fortis Benefits v. Cantu, 234 S.W.3d 642, 650 n.54 (Tex.

2007) and In re Ford Motor Co., 211 S.W.3d 295, 299 (Tex. 2006)) (per curiam;

47
orig. proceeding). The parties to oil-and-gas leases frequently disagree about the

prices and volumes used in royalty calculations. CR3:1138 (¶7). New information

may be received months later that requires an adjustment of the royalty. CR3:1138

(¶6). If the failure to reconcile underpayment by March 1 results in immediate

termination, the lessee would risk losing its lease based on a disagreement about

the methodology, pricing, or volumes to be used in royalty calculations, or if it

made a mistake. CR3:1138 (¶7). Such an interpretation would allow lessors

effectively to blackmail a lessee by disputing every reconciliation. Id. And it would

allow, as in this case, a lessor to conduct audits months or years after the claimed

termination event, looking for any type of uncorrected underpayment in order to

hijack a valuable mineral lease and improvements to property and recover over a

year of past proceeds. Id.

Paragraph XIV does not clearly and unequivocally provide for termination

based on a failure to make reconciliation payments by March 1. By its plain

language, paragraph XIV does not provide for termination of the lease based on

underpayment at all. Instead, paragraph XIV provides for termination only for a

nonpayment of monthly royalties within 60 days after the production month.

Accordingly, this Court should reverse the summary judgment in its entirety and

render partial summary judgment that the lease did not terminate.

48
 4. In any event, Paragraph XIV cannot support termination so
long as Escondido’s interpretation is reasonable.

Even if Justapor’s competing interpretation were somehow defensible, the

fact that Escondido’s interpretation is reasonable would, at a minimum, mean that

Jimmy Jones drafted a lease agreement that is fundamentally ambiguous. Because

an ambiguous termination or forfeiture provision cannot support that draconian

remedy, the trial court erred in concluding that Escondido’s lease expired. See

Knight, 188 S.W.2d at 566. “If the provision is ambiguous, that alone condemns it

as a forfeiture provision.” Decker, 110 Tex. at 94, 216 S.W. at 386. Upon

concluding two reasonable interpretations exist, the result is not a fact issue on the

provision’s proper meaning, but instead a ruling as a matter of law against

termination. See Knight, 188 S.W.2d at 566; Decker, 110 Tex. at 94, 216 S.W. at

386. This court should therefore render judgment that the lease did not terminate.

C. Independently, termination is improper because Justapor did not
establish Escondido was required to reconcile any underpayment.

An independent reason to reverse the trial court’s holding of termination is

that Justapor failed to establish conclusively that Escondido breached the contract

by failing to reconcile alleged underpayments. Although the Court could decide the

issue of termination without deciding whether Escondido breached the contract, it

is necessary for the Court to address this part I.C in order to rule on the summary

judgment determination of breach of contract as a matter of law, the award of

49
$3,619 in contract damages, and the severed claim for attorney’s fees and other

fees. See CR3:1861, 1897-98.

Justapor’s claim of breach is based on two different periods and amounts of

alleged underpayment: (1) $77,107 for production months February 2012 through

January 2013; and (2) $3,851 for production months October 2011 through January

2012. Because the theory and defenses for these two periods are different, we

address them separately.

1. Justapor did not establish any underpayment for
production months February 2012 – January 2013 based on
unambiguous lease terms.

There are two respects in which Justapor’s argument for termination is not

unambiguously supported by the royalty-price provisions: (1) the effect of the

special royalty pricing provision in the first lease amendment, and (2) the effect of

the royalty pricing prong on which Justapor relies. Summary judgment on the issue

of breach was improper because the lease unambiguously supports Escondido’s

reading of the amendment. Alternately, the lease is ambiguous, precluding

summary judgment. Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 529 (Tex.

1987). Further, if there is any ambiguity, uncertainty, or doubt in the lease

language triggering termination, forfeiture is prohibited as a matter of law. Knight,

188 S.W.2d at 566. Thus, Justapor’s motion should have been denied and partial

50
summary judgment of no termination should have been granted in Escondido’s

favor.

a. The special pricing provision replaced all pricing
measures, or alternatively was ambiguous.

The parties’ dispute over the royalty price concerns the effect of the lease

amendment on the pricing provision in paragraph III(b), which provided that the

25% royalty “shall be calculated and paid to [Justapor] based upon the highest of”

four different gas prices: (i) “CURRENT MARKET VALUE,” (ii) the

“CURRENT HOUSTON SHIP CHANNEL PRICE,” (iii) “CURRENT

PROCEEDS REALIZED BY LESSEE” [Escondido], and (iv) “the highest sales

price of any gas were gas produced from the property could be present when sold

to a third party.” CR3:982 (¶III(b)). The first three of these prices were defined in

detail; the last was not defined at all. CR3:982-83 (¶III(b)(i)–(iii)).

In the lease amendment, the special pricing provision stated:

Provided however, Lessee shall have the right to enter into gas sales’
contracts that will determine the price upon which gas royalty is
calculated if such contracts provide no less than a price
redetermination every six months and provide the following minimum
terms....

CR3:1015 (minimum terms omitted); CR3:1326 (¶5). The amendment, as drafted,

placed this provision in a paragraph labeled as an amendment to Paragraph III “(b)

ii.” It appeared at the end of a long paragraph in which the first parts of the

paragraph define “HOUSTON SHIP CHANNEL PRICE.” CR3:1015.

51
 The parties offer two competing interpretations:

1 – Escondido’s interpretation: The special pricing provision, on its face,

modifies “the price upon which gas royalty is calculated.” It replaces all four

alternate price measures as the single price on which gas royalty is

calculated.

2 – Justapor’s interpretation: The special pricing provision only modifies

the Houston Ship Channel Price—which means that any of the other three

alternate prices govern if it is higher. See CR3:1669.

There are several reasons why Escondido’s interpretation is the only reasonable

one, or alternatively, the amendment is at least ambiguous.

First, the special pricing provision does not modify only the Houston Ship

Channel Price as Justapor claims. CR3:1015. The sentence does not mention the

Houston Ship Channel Price. Instead, the sentence states in global terms that its

measure “will determine the price upon which gas royalty is calculated.” Id.

Justapor’s reading of this sentence contradicts its plain language. Justapor attempts

to transform “price upon which gas royalty is calculated” into the Houston Ship

Channel Price. But the gas royalty is not calculated on the Houston Ship Channel

Price under the original lease when the Houston Ship Channel Price is not the

highest of the four measures. The plain language of the special price provision

modifies the whole royalty price, not just the Houston Ship Channel Price.

52
 Second, Justapor’s best argument is based, not on the language of this

sentence, but on its label and location—at the end of a long paragraph that begins

with the title “(b) ii” and that, apart from this sentence, consists of a definition of

the Houston Ship Channel Price. But the location and label of the paragraph do not

determine its meaning when the plain language requires a different construction.

Although “in certain cases courts may consider the title of a contract provision or

section to interpret a contract, ‘the greater weight is given to the operative

contractual clauses of the agreement.’” Enter. Leasing Co. v. Barrios, 156 S.W.3d

547, 549 (Tex. 2004) (per curiam) (quoting Neece v. A.A.A. Realty Co., 159 Tex.

403, 322 S.W.2d 597, 600 (1959)).

Third, it would make no sense for the special pricing provision to modify

just the Houston Ship Channel Price. If the special pricing provision were to

modify only the Ship Channel price, then it would be redundant with part (iii) of

the 4-prong royalty in the original lease, which also is based on a “current

proceeds” measure. Under Justapor’s reading, the amendment would make parts

(ii) and (iii) redundant, therefore rendering one of them meaningless surplusage. A

court should avoid an interpretation that renders a term meaningless. Italian

Cowboy, 341 S.W.3d at 333. Instead, the special pricing provision is a measure of

royalty price based on the current proceeds that Escondido receives from contracts

that meet minimum pricing requirements. That has nothing to do with the Ship

53
Channel Price, but is a replacement for all of the royalty measures and therefore

“will determine the price upon which gas royalty is calculated.” CR3:1015.

Fourth, the surrounding circumstances, including the parties’ prior

negotiations, demonstrate that Justapor’s interpretation is unreasonable. See

Houston Exploration Co. v. Wellington Underwriting Ags., Ltd., 352 S.W.3d 462,

469 (Tex. 2011) (noting that courts may consider “surrounding circumstances that

inform, rather than vary from or contradict, the contract text”). Wrather told Jones

that Escondido did not want to use the royalty calculation in the original lease, but

instead wanted to base pricing on Escondido’s agreement with Enterprise.

CR3:1325 (¶4); CR3:1274. And Jones agreed to such a non-assignable

amendment. CR3:1325-26 (¶4). These negotiations, consistent with Escondido’s

interpretation, render Justapor’s interpretation unreasonable.

b. The royalty price measure on which Justapor relies is
ambiguous or meaningless.

Justapor’s motion for summary judgment argued that Escondido underpaid

royalties by around $77,100 for one year of production starting in February 2012

because it did not use the fourth pricing measure in the original lease:

(iv) the highest sales price of any gas were gas produced from the
property could be present when sold to a third party.

CR3:982 (¶III(b)); see also CR1:233-235 (motion for summary judgment);

CR1:330-332 (expert calculations of underpayment). Justapor argued that this

54
measure resulted in the highest gas price and should have been applied after

February 2012. CR1:233-35; CR1:330-332.

This provision is ambiguous at best, and meaningless at worst. Even if it is

assumed that “were” is a typo and should mean “where,” this provision still makes

no sense. For instance, would “where gas is sold” refer to the highest sales from a

particular well, from anywhere on the property, or to market price in the area?

Does “when sold” refer to the highest sales price at the exact time of the sale, the

day of the sale, the month of the sale? And does “when sold to a third party” refer

to the highest sales price for that particular purchaser or to any purchaser?

There was ample summary-judgment testimony that this language is

meaningless in the industry. According to Energy Law Professor Lowe, “[a]

typical lessee in the oil-and-gas industry would not know how to apply this

provision to the calculation of royalty payments” and it “could be interpreted in

alternative ways....” CR3:1137 (¶2). It is not a “customary or usual royalty

provision” and is “unclear and ambiguous.” Id. According to CPA Abington, this

provision is “unclear” and is not defined. CR3:1150 (¶10). This provision was

inherently ambiguous.

2. Fact issues exist regarding production months November
2011 – January 2012.

The issue for the alleged $3,851 underpayment for production months

November 2011 through January 2012 is different. There is no dispute that

55
Escondido paid Justapor royalties that were $3,851 less than the Enterprise special

pricing provision set out in the amendment. CR1:340:13-23; CR3:1148 (¶4). But it

did not make up that amount because (1) Justapor caused it to receive a lower price

during this period by terminating the Enterprise ground lease and insisting that

Escondido continue to sell at the daily spot price, and (2) Jones verbally agreed to

the royalty he was going to get based on the lower daily spot price. CR1:340:20-

341:20; CR3:1089:13-20; see also supra p. 24-25. Further, Jones did not complain

about this alleged nonpayment for over 18 months as he continued to accept

royalties from Escondido. CR3:1044:20-1045:9. During this time Escondido

continued to invest an additional $10 million into its $33 million investment,

including drilling costs and other improvements CR3:1220-21.

This evidence at least created a fact issue on Escondido’s defenses of waiver

and estoppel. CR2:928. Jones’ verbal agreement to the reduced royalty, plus his

continued acceptance of royalties for 18 months without complaint, raises a fact

issue on waiver. See G.H. Bass & Co. v. Dalsan Properties-Abilene, 885 S.W.2d

572, 578 (Tex. App.—Dallas 1994, no writ) (holding evidence that landlord

accepted less than full payment raised a fact issue of waiver precluding summary

judgment).

Similarly, the evidence supports an inference that Jones concealed his

complaint and his belief that the lease terminated as Escondido poured an

56
additional $10 million into drilling costs and improvements. This meets the

elements of equitable estoppel: (1) a false representation or concealment of

material facts; (2) made with knowledge, actual or constructive, of those facts; (3)

with the intention that it should be acted on; (4) to a party without knowledge or

means of obtaining knowledge of the facts; (5) who detrimentally relies on the

representations. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962

S.W.2d 507, 515-16 (Tex. 1998).

Accordingly, the summary judgment and the awards based on termination

and breach of contract should be reversed, summary judgment rendered that there

was no termination, and the breach-of-contract issue remanded for further

proceedings.

D. Independently, lease termination is improper because it is
inequitable on these facts.

Because this case involves forfeiture, equity is an independent ground to

reverse the termination finding. Equitable defenses are available to a claim of lease

termination. See Humble Oil & Ref. Co. v. Harrison, 146 Tex. 216, 226, 205

S.W.2d 355, 361 (Tex. 1947). Even if the lease clearly, plainly, and

unambiguously provided for termination in these circumstances, the equities

“justify a continuation of the contract rather than forfeiture of it....” T-Anchor, 529

S.W.2d at 627. “[E]quity will consider the conduct of the adversary, the

requirements of public policy, and the relation of the misconduct to the subject

57
matter of the suit and to [the party asserting clean hands].” Pac. Mut. Life Ins. Co.

v. Westglen Park Inc., 160 Tex. 1, 6, 325 S.W.2d 113, 117 (1959).

1. It would be inequitable to enforce a termination in light of
Justapor’s conduct.

Justapor’s claim of forfeiture disregards its apparent scheme to lay a trap.

Jones, while representing Escondido in other matters, drafted a lease that, under his

interpretation, enhanced the likelihood both of Escondido’s forfeiture and

Justapor’s windfall. The evidence supports an inference that Justapor told

Escondido that the “tough” aspects of the lease would not apply to it and that any

problems would be resolved by negotiation. Then, after reaping the benefit of

Escondido’s $33 million in improvements, Justapor made every effort to find a

technical reason to terminate the lease and caused Escondido to lose its highest-

paying gas purchaser. This evidence of Justapor’s unclean hands should have

precluded summary judgment for Justapor. See Truly v. Austin, 744 S.W.2d 934,

938 (Tex. 1988) (preventing a party who caused the failure of a project to impose

liability on others for its failure).

The negotiation and drafting of the lease. Before entering this lease, Jones

gained Escondido’s trust by making reassurances about any future problems with

this lease and even becoming Escondido’s fiduciary in negotiating other leases.

Jones drafted the Justapor lease and the amendment. CR3:1325-26. He was

also acting as Escondido’s attorney. Although Jones did not represent Escondido in

58
negotiating this lease, he was Escondido’s attorney in other matters during some of

the negotiations and at the time this lease was signed. CR3:1328 (¶¶12-13);

CR3:1325-26 (¶¶3-5); CR3:1328 (¶13). The situation is similar to a lawyer who

already represents a client when he negotiates an attorney-client agreement with

that client. Because a lawyer's fiduciary duty to a client covers contract

negotiations between them, such contracts are closely scrutinized. Anglo-Dutch

Petroleum Int'l, Inc. v. Greenberg Peden, P.C., 352 S.W.3d 445, 450 (Tex. 2011).

And although Escondido was a sophisticated party, it was not represented by

independent counsel, nor did Jones suggest that it retain counsel. CR3:1325 (¶2).

Jones assured Escondido that it would not be subject to the original lease’s

pricing terms and that any disagreements would be negotiated. He told Escondido

Justapor would agree to payment of royalty based on the Enterprise pricing terms,

but only so long as the lease was held by Escondido. CR1325 (¶4). And he agreed

to draft the “special royalty pricing provision, based upon the Enterprise price.”

CR1325-26(¶4). He told Escondido that he had drafted a “tough agreement” in

case Escondido ever assigned its rights under the Lease Agreement to another

party, but that he would work out with Escondido any issues that might arise.

CR3:1329 (¶17). He never told Escondido that he interpreted the termination

provision to mean that the lease could terminate based on an underpayment of

59
royalties, a circumstance the lease covered under a separate provision. CR3:1329

(¶17).

Despite these representations and Jones’ fiduciary relationship with

Escondido, he now seeks to do the opposite—argue that the royalties were not

governed by the Enterprise price agreement and assert that the lease terminated

ipso facto, without notice, and without any attempt to work out any issues that

might arise.

Justapor’s creation of the circumstances resulting in underpayment.

Jones, acting on behalf of Justapor, created the situation that gave rise to the first

underpayment. No gas royalty payments were disputed until Jones terminated the

Enterprise Surface Site Agreement unilaterally. Justapor improperly terminated

that agreement because Enterprise was late on one $4,500 lease payment.

CR3:1326 (¶8); CR 3:1092:5-11; CR3:1282. Justapor refused to give Enterprise

the notice of default and opportunity to cure required by the lease, and it even

refused to accept Enterprise’s subsequent rental check. CR3:1054:17-1059:13. It

told Enterprise that Enterprise could not use the meter and that Justapor was going

to take their equipment. CR3:1092:7-19. And Justapor insisted Escondido sell gas

at a lower daily spot price to Kinder Morgan rather than shutting in the wells until

Escondido could negotiate a better price. CR3:1326-27 (¶8). This prevented

60
Enterprise from purchasing gas produced on the Justapor Ranch and forced

Escondido to sell gas for a lower price. CR3:1326-27 (¶8); CR1:341:5-13.

Justapor’s agreement to the underpayment. There was evidence that

Jones verbally agreed to the royalty price based on the lower daily spot price.

CR1:340:20-341:20; CR3:1089:13-20. Although this verbal modification of the

lease may not be enforceable, it is evidence that Justapor led Escondido to believe

the lower royalty payment was not a problem. This is especially true in light of

Jones earlier promise to Wrather that, notwithstanding the lease’s “tough” terms

designed for assignees, Justapor would work out any problems that arose with

Escondido. It would be inequitable to terminate the lease based on an

underpayment to which Justapor consented.

The evidence supports an inference that Justapor terminated the Enterprise

Surface Site Agreement to cause Escondido to lose that purchaser, provoking an

act of default resulting in forfeiture. Equity should not reward that scheme.

2. Forfeiture is inequitable because it would be
disproportionate with the alleged breach.

The trial court terminated Escondido’s lease in which it had invested more

than $33 million, and awarded well more than $12 million in damages, as legal

remedies to Escondido’s royalty underpayment of somewhere between $3,800 and

$81,000, or somewhere between .00067 and .014 of the $5.7 million in royalties

previously paid to Justapor.

61
 Even if the lease clearly and unambiguously provided for termination, the

inequity of such disproportionate result does not justify a forfeiture. See T-Anchor

Corp., 529 S.W.2d at 627.

3. Forfeiture would be inequitable because Jones did not raise
it for 18 months after the alleged termination.

Justapor first notified Escondido that it believed there had been any

underpayment of gas royalties when it sued Escondido in August 2013. CR1:22;

CR3:1044:20-1045:9. This was 20 months after the underpayment of October 2011

royalties and 17 months after the March 2, 2012 date Justapor alleges, and the trial

court held, that the lease terminated. CR3:1859. During this time Escondido

continued to invest an additional $10 million into its $33 million investment,

including drilling costs and other improvements CR3:1220-21. Yet under the trial

court’s judgment, Escondido loses all of its investment, must return all revenues

from that 18-month period, and cannot deduct its expenses during that period. See

CR3:1859-61. That result is neither fair nor equitable.

E. Remedy: the summary judgment should be reversed in its entirety
and partial summary judgment rendered that there was no
termination.

Both Justapor’s grounds for summary judgment and all affirmative relief

granted to it in the judgment were premised on the termination of the lease. See

CR1:260-61; CR3:1858-1861. Accordingly, the summary judgment granting

Justapor’s affirmative claims should be reversed in its entirety.

62
 Additionally, because the lease did not terminate as a matter of law,

judgment should be rendered in Escondido’s favor denying the following causes of

action asserted by Justapor, all of which are premised on lease termination:

trespass (including claims of bad-faith trespass and punitive damages), trespass to

try title, and its request for an accounting and declaratory relief. CR1:153-155;

CR2:812. Justapor’s claim of breach of contract should be remanded for further

proceedings consistent with this Court’s judgment.

II. Regardless of whether the lease terminated, Justapor did not
conclusively establish Escondido was a bad-faith trespasser.

In its final judgment and summary-judgment orders, the trial court found

“that from March 2, 2012 through the date hereof [Escondido] has remained, and

remains, in unlawful possession of minerals covered by the Justapor Lease as a

bad-faith trespasser, and is not, and never has been, a good faith trespasser.…”

CR3:1760, 1797, 1859. Based on this ruling, the trial court declared that Justapor is

entitled to damages in the amount of all proceeds from the sale of oil and gas

produced from the Justapor Lease from March 2, 2012 until the date of final, non-

appealable judgment in this matter, less royalties already paid by Escondido, but

without any deduction for production costs or other expenses incurred by

Escondido with regard to the Lease. CR3:1860; see also CR1:254.

Justapor’s claim that Escondido is a trespasser rests on the finding that the

Lease terminated. CR1:250-54. As shown in part I above, the trial court erred in

63
that ruling. Accordingly, as a matter of law, Escondido remained the lessee and

was not a trespasser at all, much less a trespasser in bad faith. If the Court reverses

the trial court’s ruling that the lease terminated, it should reverse the summary

judgment on the bad-faith trespass claim without the need to examine this separate

issue.

But even if the lease had terminated as a matter of law, Justapor did not

conclusively establish bad-faith trespass, and the trial court’s summary judgment

should be reversed.

A. Escondido was not a bad-faith trespasser per se because it lawfully
entered into possession of the land.

The question of whether Escondido was a bad-faith trespasser turns on

whether, as a matter of law, Escondido transformed from a lessee in lawful

possession of land under a lease into a bad-faith trespasser at the moment Justapor

contends the Lease terminated (i.e., on March 2, 2012). In general, the question of

a defendant’s good faith in entering upon land and developing oil-and-gas

production is one of fact. Gulf Prod. Co. v. Spear, 125 Tex. 530, 539, 84 S.W.2d

452, 457 (1935). To be in good faith, a party must have both an honest and

reasonable belief in the superiority of one’s title. Id.; Mayfield, 693 S.W.2d at 504.

The law will conclusively presume that a person is a bad-faith trespasser

only when he enters into possession of land and makes improvements thereon with

full knowledge of the pendency of an action to enforce an adverse claim to the

64
premises. Houston Prod. Co. v. Mecom Oil Co., 62 S.W.2d 75, 76 (Tex. Comm’n

App. 1933); Mayfield v. de Benavides, 693 S.W.2d 500, 504 (Tex. App.—San

Antonio 1985, writ ref’d n.r.e.). The conclusive-presumption standard does not

focus on when the person enters on to the land, but rather when he enters into

possession of the land. Thus, Texas law distinguishes between: (1) a person who

enters into peaceable possession of land under a valid lease before any adverse

claim is filed; and (2) a person whose first entry on the land does not occur until

after a lawsuit has been filed to enforce an adverse claim. Mecom, 62 S.W.2d at 76.

When a lessee in good faith enters into peaceable possession of land under a

valid oil-and-gas lease, and under a claim of right produces oil and gas from it, and

the lease later is declared invalid or otherwise terminated in a suit to enforce an

adverse claim, the lessee is not a bad-faith trespasser per se. Id.; Barnes v. Winona

Oil Co., 200 P. 985, 986 (Okla. 1921) (quoted and discussed in Mecom). The

conclusive presumption will not arise if the lessee has taken possession of land

under a lease in good faith, but later learns that the lease does not afford him the

right to develop the minerals. Mecom, 62 S.W.2d at 76; Barnes, 200 P. at 986.

Only when a person first enters into possession of land with full knowledge of the

pendency of a lawsuit to enforce an adverse claim—i.e., there is no prior

possession by the lessee—does Texas law classify the person as a bad-faith

65
trespasser per se, such that he cannot recover the cost of his improvements.

Mecom, 62 S.W.2d at 76-77.

This rule reflects Texas policy to encourage the recovery of minerals and to

discourage waste in the production of oil and gas. Key Operating & Equip., Inc. v.

Hegar, 435 S.W.3d 794, 798 (Tex. 2014). When a lessee acquires peaceable

possession of the land prior to a lawsuit on an adverse claim, allowing continued

production pending resolution of a later claim furthers the recovery of minerals and

lowers the risk of waste. Subjecting oil and gas lessees to the risk that, upon the

filing of an adverse claim (no matter how arguable or spurious), the lessee must

cease operations until the claim is resolved would discourage lessees from agreeing

to develop oil and gas production. Moreover, punishing a lessee who has obtained

possession in an orderly manner without creating a breach of the peace, and who is

operating under a lease that has not yet been declared invalid or void, would give

the landowner an unjust windfall. See Barnes, 200 P. at 986.

A lessee who enters into possession of land under a lease before the filing of

a lawsuit, i.e., without any knowledge of a pending action to enforce an adverse

claim, does not fall under the conclusive presumption standard and cannot be a

bad-faith trespasser per se. See Mecom, 62 S.W.2d at 76-77. Continuing to possess

the land after receiving notice of an adverse claim does not prohibit a finding of

good faith, although it is a circumstance a jury may consider in answering the fact

66
question. Mayfield, 693 S.W.2d at 505. This rule recognizes that, even though a

defendant may know there is title in another superior to the defendant’s title, he

might believe, and have good grounds to believe, in his own claim to the property.

Lowder v. Schluter, 78 Tex. 103, 108, 14 S.W. 205, 206, rev’d on reh’g on other

grounds,1 78 Tex. 109, 14 S.W. 207 (1890). Belief in one’s own superior right is

determined from all the facts in evidence, the titles, and other circumstances, as

viewed by persons of ordinary intelligence and prudence. Lowder, 78 Tex. at 108,

14 S.W. at 206.

It is undisputed that Escondido entered lawful possession of the land before

March 2, 2012. CR3:981, 1326 (¶5). 2 Justapor has neither alleged nor proven that

the lease terminated before that date. Accordingly, Escondido cannot be a bad-faith

trespasser per se. See Mecom, 62 S.W.2d at 76-77.

B. Justapor also did not conclusively establish that Escondido lacked
a good-faith belief in the superiority of its title.

Aside from the per se bad faith established when a lawsuit is filed before a

party first gains possession of land, good faith may become a question of law if

1
On rehearing, the Court determined there was no evidence defendants had adverse possession
that would entitle them to recover the value of any improvements, rendering harmless the jury
charge error on which the Court initially reversed and remanded. 78 Tex. at 109, 14 S.W. at 207.
2
Justapor’s lawsuit was not filed until August 20, 2013. CR1:22. Escondido was not served with
the lawsuit until September 23. CR1:9. Even if the conclusive presumption could apply,
Escondido could not have acted “with full knowledge of the pendency of an action to enforce an
adverse claim to the premises” until September 23, 2013, a date over 18 months after the date on
which the trial court concluded Escondido became a bad-faith trespasser. See CR3:1760, 1797,
1859.

67
there is no conflict in the evidence. Covington v. Travelers Indem. Co., 122 S.W.3d

330, 334-35 (Tex. App.—Fort Worth 2003, no pet.). On the other hand, if there is

evidence on both sides, bad faith presents a fact question precluding summary

judgment. See Covington, 122 S.W.3d at 335; Vela v. Pennzoil Prod. Co., 723

S.W.2d 199, 205 (Tex. App.—San Antonio 1986, writ ref’d n.r.e.); Elliott v. Davis,

553 S.W.2d 223, 226-27 (Tex. Civ. App.—Amarillo 1977, writ ref’d n.r.e.).

Rendering summary judgment where such a fact question exists not only

contravenes Texas law, but also deprives the defendant of its “exceptionally broad

jury trial right” under the Texas Constitution. Universe Life Ins. Co. v. Giles, 950

S.W.2d 48, 56 (Tex. 1997).

In this case, the weight of the summary-judgment evidence indicates that

Escondido had a good-faith belief in the superiority of its title. Justapor contends

the Lease terminated because of alleged royalty underpayment. CR1:246-49.

Escondido, on the other hand, contends the termination provision is triggered only

by nonpayment of monthly royalties; for this and other reasons, any alleged

underpayment did not terminate the Lease. CR3:959-66. Escondido’s

interpretation, supported by expert testimony about industry and custom, provided

good grounds to believe the Lease continued in effect, even if Escondido’s belief

ultimately turns out to be mistaken. CR3:1137-138 (¶¶2-9); CR3:1149-51 (¶¶6-11).

Additionally, there was evidence that Escondido believed its interpretation of the

68
pricing and termination provisions was correct. CR3:1325-26 (¶¶4-5), 1329-30

(¶17); see Brannon v. Gulf States Energy Co., 562 S.W.2d 219, 224 (Tex. 1977)

(holding one may be completely mistaken about superior title and still trespass in

good faith); Lowder, 78 Tex. at 108, 14 S.W. at 206 (allowing that good grounds to

believe in one’s own claim even when one knows there is superior title in another).

There was no evidence that Escondido ever believed that the lease terminated and

that it was a trespasser.

At most Escondido may have established its good faith as a matter of law; at

least, the issue presents a question of fact that a jury must decide. See Spear, 125

Tex. at 539, 84 S.W.2d at 457; Covington, 122 S.W.3d at 335. As a result, the trial

court’s summary-judgment ruling that Justapor was a bad-faith trespasser

(including both liability findings and all damages awards) should be reversed and

the claim remanded for further proceedings consistent with this Court’s opinion.

C. Because Escondido was not a bad-faith trespasser, the judgment
should be reversed and the case remanded for further
proceedings.

Several aspects of the judgment were premised on the ruling that Escondido

is a bad-faith trespasser. If this Court holds the lease terminated, but reverses the

ruling that Escondido is a bad-faith trespasser, then other aspects of the judgment

also must be reversed.

69
 Trespass damages. Escondido’s measure and evidence of damages to

support the judgment award of $12,038,042 in trespass damages require that

Escondido be a bad-faith trespasser. See CR3:1676, 1860, 1861. But if the bad-

faith ruling is reversed, Escondido’s measure is incorrect because it fails to deduct

drilling and operating costs. See Moore v. Jet Stream Investments, Ltd., 261

S.W.3d 412, 428 (Tex. App.—Texarkana 2008, pet. denied). In cases involving

good-faith oil-and-gas trespass, courts measure damages by “net profits.” Maxvill-

Glasco Drilling, Co., Inc. v. Royal Oil & Gas Corp., 800 S.W.2d 384, 386 (Tex.

App.—Corpus Christi 1990, writ denied). A party “who drills a well in good faith

is entitled to reimbursement.” Wagner & Brown, Ltd. v. Sheppard, 282 S.W.3d

419, 426 (Tex. 2008). The award of trespass damages must be reversed and the

issue remanded.

Accounting. The judgment orders an accounting and payment of all

proceeds of production from March 2, 2012 through August 31, 2014 and from

September 1, 2014 until Escondido relinquishes possession. CR3:1859. This relief

should be reversed to allow deductions for drilling and operating costs. See Moore,

261 S.W.3d at 428.

Prejudgment interest. The judgment’s award of prejudgment interest is

based on the improper damage awards and thus should be reversed. See CR3:1861.

70
 Relief under Texas Property Code. The judgment denied Escondido’s

counterclaim under Texas Property Code Sections 22.021-0.24, including its claim

to recover the value of improvements. CR2:930; CR3:1860. Section 22.021

provides that a trespasser who possessed property in good faith and made valuable

improvements to it is either:

(1) entitled to recover the amount by which the estimated value of the
defendant's improvements exceeds the estimated value of the
defendant's use and occupation of and waste or other injury to the
property; or

(2) liable for the amount by which the value of the use and occupation
of and waste and other injury to the property exceeds the value of the
improvements and for costs.

Tex. Prop. Code Ann. § 22.021(a); see also Brannon, 562 S.W.2d at 224 (holding

driller under invalid lease entitled to reimbursement of reasonable drilling

expenditures if it drilled “in good faith belief in the superiority of its lease”).

If the bad-faith ruling is reversed, the case should be remanded for trial of

this claim because there was evidence that Escondido made $33.1 million in

improvements to the land, including approximately $10 million after March 2,

2012. CR3:1149 (¶5); CR3:1220-21.

III. The trial court erred by granting summary judgment declaring the
parties’ rights and requiring conveyance of Escondido’s leasehold
interests regarding the “vacancy tract.”

Justapor also sought summary judgment on declaratory judgment concerning

42 acres known as the “vacancy tract.” The dispute concerns the meaning and

71
effect of the August 9, 2011 letter agreement regarding the “vacancy tract” and

whether Justapor is entitled to a conveyance of the vacancy tract. CR1:255. The

trial court’s summary judgment ruling did not specifically address the vacancy

tract. But its Final Judgment provided broadly that Justapor is entitled to a

conveyance from Escondido “of mineral interests acquired under the Justapor

Ranch,...” and “all other additional interests and improvements acquired in or

under the Justapor Ranch, such as mineral interests, leasehold interests, or any

other interests acquired by lease, deed or otherwise.” CR3:1858 (emphasis added).

The trial court also ordered specific performance: that Escondido “shall effectuate

such conveyance on or before the date this judgment becomes a final, non-

appealable judgment….” CR3:1858-59.

Escondido seeks to reverse this broad relief in the judgment, in part, because

of the improper ruling on lease termination. But because the vacancy tract was a

separate summary-judgment ground, and appears to fall within the broad relief

granted, this separate issue addresses why Justapor is not entitled to a conveyance

of interests specifically in the vacancy tract.

A. Justapor did not conclusively establish its declaratory judgment
claim.

Justapor did not conclusively establish (1) that its interpretation of the letter

agreement was correct, or (2) the existence of a justiciable controversy.

Declarations interpreting a contract are appropriately rendered by summary

72
judgment only if the contract provision at issue is unambiguous. See Barrand, Inc.

v. Whataburger, Inc., 214 S.W.3d 122, 129 (Tex. App.—Corpus Christi 2006, pet.

denied). Declaratory judgment is proper only if a real and substantial controversy

involving a genuine conflict of tangible interests exists, not merely a theoretical

dispute. See Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995).

1. Justapor did not conclusively establish that the interests to
be conveyed include leasehold interests.

Based on the letter agreement as a whole, the only reasonable interpretation

is that Escondido agreed to convey only “mineral interests”—not leasehold

interests. The summary judgment record contains two versions of the letter

agreement. CR1:445-48; CR3:1308-11. Both are initialed. Both are signed. Both

have the same date.

The letter agreement attached to Escondido’s summary judgment response

provides:

Additionally, we have agreed to convey to an entity of your choice,
mineral interests we have acquired under the referenced 803 acres, as
well as all other mineral mineral [sic.] interests we acquire in this
land after your approval & consent.

CR3:1310 (emphasis added). A different version of the letter agreement attached to

Justapor’s summary judgment motion provides:

Additionally, we have agreed to convey to an entity of your choice,
mineral interests we have acquired under the referenced 803 acres as
well as all other additional interests we acquire in this land after your
approval and consent.

73
CR1:447 (emphasis added).

Based on these two versions and the letter agreement as a whole, “mineral

interests” and “additional interests” should mean the same thing. Interpreting the

two versions to have the same meaning is consistent with the fact that both

agreements are initialed and dated the same day. These writings must be

considered together. See DeWitt Cnty. Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96,

102 (Tex. 1999).

The letter agreement attached to Justapor’s summary judgment motion

provides that Escondido will convey “mineral interests we have acquired under the

referenced 803 acres, as well as all other additional interests we acquire in this

land after your approval and consent.” CR1:447 (emphasis added). The general

term “additional interests we acquire” refers back to the specific term “mineral

interests.” See Hilco Elec. Co-op., Inc. v. Midlothian Butane Gas Co., 111 S.W.3d

75, 81 (Tex. 2003). In other words, Escondido agreed as to not only mineral

interests acquired at the time the agreement was signed, but also any mineral

interests acquired with Justapor’s approval and consent after signing. See

CR1:447. In contract interpretation, specific and exact terms are given greater

weight than general language. Worldwide Asset Purchasing, L.L.C. v. Rent-A-

Center E., Inc., 290 S.W.3d 554, 560-61 (Tex. App.—Dallas 2009, no pet.). When

words of a general nature are used in connection with the designation of particular

74
objects or classes of persons or things, the meaning of the general words will be

restricted to the particular designation. Hilco Elec., 111 S.W.3d at 81.

In order to hold that “additional” means something other than “mineral”

interests, the Court would have to strike out the term “mineral” from that version

of the letter agreement and add the term “additional.” In contrast, interpreting

“additional” to mean “mineral” interests harmonizes the two versions and prevents

a conflict that would render the term “mineral interests” in that version of the letter

agreement meaningless. See Frost Nat’l Bank v. L & F Distribs., Ltd., 165 S.W.3d

310, 312 (Tex. 2005) (per curiam).

Justapor acknowledged mineral interests do not include leasehold interests.

CR3:1679 (¶38). Justapor’s position that “additional” means a different type of

interest, as opposed to additional interests of the same type acquired at a later date,

would require the Court to violate fundamental rules of contract interpretation and

common sense. The letter agreement unambiguously requires conveyance only of

“mineral interests,” which do not include leasehold interests. Accordingly, the trial

court erred in granting summary judgment that the letter agreement requires

conveyance of interests other than mineral interests.

2. Unless “mineral interests” and “additional interests” mean
the same thing, the letter agreement is ambiguous.

If the Court disagrees, however, the face of the summary judgment record at

least shows the letter agreement is ambiguous. If “mineral interests” and

75
“additional interests” are given different meanings, it is unclear whether the parties

intended to require Escondido to convey “mineral interests” or “additional

interests” and what “additional interests” might include. Compare CR1:447 with

CR3:1310. This ambiguity would create fact questions about the letter agreement’s

meaning and effect, precluding summary judgment on Justapor’s vacancy tract

claim. See Reilly, 727 S.W.2d at 529.

3. Justapor did not establish that it had chosen an entity to
which any interests should be conveyed.

The letter agreement provided that Escondido was obligated to convey either

“mineral interests” or “additional interests” “to an entity of [Justapor’s] choice….”

CR1:447; CR3:1310. Justapor provided no summary judgment evidence that it

identified its chosen entity to Escondido, and neither the summary judgment

motion nor the judgment identifies the entity to whom Escondido is required to

convey unidentified “leasehold interests, or any other interests acquired by lease,

deed, or otherwise ….” CR1:254-55; CR3:1760.

Unless and until Justapor chose an entity to whom any later interests could

be conveyed, there is no basis to conclude that Escondido “failed” to convey any

such interest or that it must convey any interest now.

76
 4. Justapor did not identify any leasehold interest that should
have been, but was not, conveyed.

Justapor also did not identify any leasehold or other interest that Escondido

acquired in the vacancy tract after Justapor’s approval and consent. The most the

summary judgment record shows is that Escondido has leased some interests from

owners of the vacancy tract, but there is no evidence as to when these interests

were acquired or whether they were acquired “after [Justapor’s] approval and

consent.” CR1:355 (Deupree deposition). Affidavit testimony by Justapor’s Jones

that “Escondido has failed to convey all of its leasehold interest in the Vacancy

Tract” is conclusory and constitutes no evidence. Compare CR1:315-16 (¶8) with

Paragon Gen. Contractors, Inc. v. Larco Constr., Inc., 227 S.W.3d 876, 883-84

(Tex. App.—Dallas 2007, no pet.). This testimony does not identify any lease,

establish it concerns the vacancy tract, or establish it was acquired after Justapor’s

approval and consent.

Justapor’s claim for declaratory relief sought an advisory ruling regarding a

phantom interest to be conveyed to a never-chosen entity. It is no support for any

portion of the trial court’s judgment.

B. Justapor was not entitled to specific performance.

Neither Justapor’s pleading nor its summary judgment motion requested

specific performance, but instead only a declaration that Justapor “is entitled to a

conveyance of all of Escondido’s interest in the Vacancy Tract....” CR1:153 (¶¶22-

77
24); CR1:255. A summary judgment cannot be sustained on a ground not set forth

in the motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339, 341

(Tex. 1993). Nor is summary judgment proper on an unpleaded claim. See DeBord

v. Muller, 446 S.W.2d 299, 301 (Tex. 1969) (holding summary judgment

unavailable to defendant on unpleaded affirmative defense).

The trial court granted specific performance when it added to the judgment:

“and [Escondido] shall effectuate such conveyance on or before the date this

judgment becomes a final, non-appealable judgment ….” CR3:1858-59. This grant

of relief is beyond the summary judgment motion. Compare CR1:255 with

CR3:1858-59.

Even if Justapor had pleaded or sought summary judgment for specific

performance, Justapor did not show it was entitled to such relief. Claims for

declaratory relief and specific performance are not interchangeable. A

determination that an agreement is enforceable—i.e., a declaration of the parties’

rights under an agreement—does not equate to a determination that a party is

entitled to specific performance. Levetz v. Sutton, 404 S.W.3d 798, 805 (Tex.

App.—Dallas 2013, pet. denied). A party seeking specific performance must

establish that it has performed, or tendered performance of, its obligations under

the contract. Stafford v. S. Vanity Magazine, Inc., 231 S.W.3d 530, 535 (Tex.

App.—Dallas 2007, pet. denied); Am. Apparel Prods., Inc. v. Brabs, Inc., 880

78
S.W.2d 267, 269 (Tex. App.—Houston [14th Dist.] 1994, no writ). By failing to

provide any evidence (much less, conclusively establish) that it had chosen an

entity to whom any interests should be conveyed, Justapor was not entitled to

summary judgment affording specific performance.

In addition, a party seeking specific performance must establish that the

other party has breached the contract. Luccia v. Ross, 274 S.W.3d 140, 146 (Tex.

App.—Houston [1st Dist.] 2008, pet. denied). If the letter agreement does not

provide unambiguously that Escondido is required to convey only mineral

interests, not leasehold interests, specific performance is improper. A contract is

subject to specific performance if its essential terms are expressed with such

certainty and clarity that it may be understood without recourse to parol evidence.

Paciwest, Inc. v. Warner Alan Props., LLC, 266 S.W.3d 559, 571 (Tex. App.—

Fort Worth 2008, pet. denied). The heightened degree of certainty required for

specific performance is a product not only of its equitable nature, but also of its

ultimate goal: to require exact performance of a contract in the specific form in

which it was made. Levetz, 404 S.W.3d at 805.

Justapor did not conclusively establish its right to specific performance,

requiring reversal of this portion of the trial court’s judgment. See City of Houston

v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

79
 CONCLUSION AND PRAYER

Escondido prays that the Court:

• reverse the trial court’s summary judgment in Justapor’s favor in its entirety;

• either:

o render partial summary judgment in Escondido’s favor that the lease

did not terminate and therefore dismiss Justapor’s causes of action for

trespass, trespass to try title, its request for an accounting and

declaratory relief; or

o alternatively, reverse the trial court’s summary judgment that

Escondido was a bad-faith trespasser and all relief based on that

finding, including the accounting ordered by the trial court, all awards

of past and future proceeds from the sale of oil and gas, prejudgment

interest, costs, and post-judgment interest; and

• and remand this case for further proceedings on the remaining claims

consistent with this Court’s opinion.

80
 Respectfully submitted,

/s/Robert Dubose
James P. Keenan Robert Dubose
State Bar No. 11167850 State Bar No. 00787396
keenan@buckkeenan.com rdubose@adjtlaw.com
J. Robin Lindley ALEXANDER DUBOSE JEFFERSON
State Bar No. 12366100 & TOWNSEND LLP
lindley@buckkeenan.com 1844 Harvard Street
BUCK KEENAN, LLP Houston, Texas 77008
700 Louisiana, Suite 5100 Telephone: (713) 523-2358
Houston, Texas 77002 Facsimile: (713) 523-4553
Telephone: (713) 225-4500
Facsimile: (713) 225-3719 Wallace B. Jefferson
State Bar No. 00000019
wjefferson@adjtlaw.com
Rachel Ekery
State Bar No. 00787424
rekery@adjtlaw.com
ALEXANDER DUBOSE JEFFERSON
&TOWNSEND LLP
515 Congress Avenue, Suite 2350
Austin, Texas 78701
Telephone: (512) 482-9300
Facsimile: (512) 482-9303

Kirsten Castañeda
ALEXANDER DUBOSE JEFFERSON
&TOWNSEND LLP
4925 Greenville Avenue, Suite 510
Dallas, Texas 75206
Telephone: (214) 369-2358
Facsimile: (214) 369-2359

ATTORNEYS FOR APPELLANT

81
 CERTIFICATE OF COMPLIANCE

Based on a word count run in Microsoft Word 2013, this brief contains

14,763 words, excluding the portions of the brief exempt from the word count

under Texas Rule of Appellate Procedure 9.4(i)(1).

/s/Robert Dubose
Robert Dubose

CERTIFICATE OF SERVICE

On May 15, 2015, I electronically filed this Brief of Appellant with the

Clerk of Court using the eFile.TXCourts.gov electronic filing system which will

send notification of such filing to the following:

Timothy Patton, Jose M. Rubio, Jr.
TIMOTHY PATTON, P.C. JOE RUBIO LAW FIRM
14546 Brook Hollow #279 1000 Washington Street, Suite 4
San Antonio, Texas 78232 Laredo, Texas 78040
tpatton@tp-pc.com joerubio@joerubiolawfirm.com

Patton G. Lochridge
MCGINNIS LOCHRIDGE & KILGORE LLP
600 Congress Avenue, Suite 2100
Austin, Texas 78701
plochridge@mcginnis1aw.com

/s/Robert Dubose
Robert Dubose

82
 APPENDIX

Tab Item
1. Final Judgment (CR3:1857-1891)

2. Order Granting Plaintiff’s Motion for Summary Judgment
(CR3:1796-99)

3. Oil and Gas Lease (CR3:981-1013)

4. Amendment to Oil and Gas Lease (CR3:1014-1020)
5. Affidavit of David Wrather (CR3:1325-1330)

6. Affidavit of John Lowe (CR3:1136-1147)
7. Affidavit of William Abington without exhibits (CR3:1148-1151)

8. August 9, 2011 Letter Agreement (version 1) (CR3:1308-1311)
9. August 9, 2011 Letter Agreement (version 2) (CR1:445-448)

10. Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768 (Tex.
2009)

11. Decker v. Kirlicks, 110 Tex. 90, 216 S.W. 385 (1919)

12. Outdoor Sys., Inc. v. BBE, L.L.C.,105 S.W.3d 66 (Tex. App.—
Eastland 2003, pet. denied)

13. T-Anchor Corp. v. Travarillo Assocs., 529 S.W.2d 622 (Tex. Civ.
App.—Amarillo 1975, no writ)

14. Vinson Minerals, Ltd. v. XTO Energy, Inc., 335 S.W.3d 344 (Tex.
App.—Fort Worth 2010, pet. denied)

15. Tex. Prop. Code § 22.021(a)

83
"

Filed
11120120144:30:30 PM
Esther Degollado
District Clerk
Webb District
2013-cv7 -001396-D 1
CAUSE NO. 2013-CV7-001396-DI

JUSTAPOR RANCH COMPANY, L.C. § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
"s. §
§
ESCONDIDO RESOURCES II, LLC, §
§
Defendants §
§
§
§
,,'

FINAL JUDGMENT

On this the 21" day of November 2014, came on to be heard Plaintiff Justapor Ranch

Company, L.C.'s ("Justapor" or "Plaintiff') Motion for Entry of Final Judgment and, upon

considering the orders entered by this Court on the Parties' Motions for Summary Judgment, and

Motion for Partial Summary Judgment, objections to summary judgment evidence, and Motion

for Severance and as well as the Motion for Entry of Final Judgment and the materials submitted

therewith, and, upon hearing the arguments of counsel, the Comt finds that Plaintiffs Motion for

Entry of Final Judgment should be granted in all respects.

The Court finds that on September 11, 2014, this Court heard Justapor Ranch Company,

L.c. 's and Escondido Resources, II, LLC's ("Defendant" or "Escondido"), cross motions for

summary judgment. After hearing and considering such motions and the evidence and arguments

submitted therewith, on October 8, 2014, this Court granted Justapor's Motion for Summary

Judgment on Defenses Attacking Lawyer James K. Jones, Jr., and denied Escondido's Motion

for Partial Summary Judgment. On October 14, 2014, this Court granted Justapor's Motion for

Summary Judgment. This Court also entered its Order Sustaining Objections to Escondido's

1

1857
Resources, II, LLC's Motion for Partial Summary Judgment Evidence and its Order on

Juslapor's Response to Escondido Resources, II, LLC's Objections to Summary Judgment

Evidence. The Court's orders on those Summary Judgment Motions are attached hereto as

Exhibits A, B, and C respectively and are incorporated herein by reference for all purposes. The

Court's Orders sustaining/denying objections to summary judgment evidence are attached hereto

as Exhibits D and E respectively and are incorporated herein by reference for all purposes. This

Court's orders on these summary judgment motions disposed of all claims and counterclaims

made the subject of this lawsuit except for Justapor's causes of action for exemplary or punitive

damages, attorneys fees, and expert witness and accounting fees and Escondido's defenses

thereto not decided by this Court's orders on the motions for summary judgment attached hereto

as Exhibits A-C.

On November 20, 2014, the Pat1ies filed an Agreed Motion for Severance of Claims to

sever these remaining claims and remaining defenses so that the summary judgment orders

entered by this Court may become final. This Court on November 21, 2014, granted the Joint

Motion for Severance of Claims.

It is therefore,

ORDERED, ADJUDGED, DECLARED, AND DECREED that the Motion for Entry of

Final Judgment be and hereby is GRANTED in all respects; and it is further

ORDERED, ADJUDGED, DECLARED, AND DECREED that the oil and gas lease

between Plaintiff Justapor Ranch Company, L.C. and Defendant Escondido Resources II, LLC

(the "Justapor Lease") is terminated, and was terminated as of March 2,2012; and it is further

2

1858
 ORDERED, ADJUDGED, DECLARED, AND DECREED that the ownership of the

minerals covered by the Justapor Lease has reverted to Plaintiff as of March 2, 2012; and it is

further

ORDERED, ADJUDGED, DECLARED, AND DECREED that Plaintiff is the sole and

rightful owner of all interests conveyed by the Justapor Lease and is the owner in fee of the

mineral estate; and it is further

ORDERED, ADJUDGED, DECLARED, AND DECREED that Defendant is not entitled

to remain in possession of the minerals or other property covered by the Justapor Lease and shall

surrender possession thereof to Plaintiff; and it is further

ORDERED, ADJUDGED, DECLARED AND DECREED that from March 2, 2012,

through the date hereof Defendant has remained, and remains, in unlawful possession of

minerals covered by the Justapor Lease as a bad faith trespasser, and is not, and has nevcr bccn, a

good faith trespasser; and it is further

ORDERED, ADJUDGED, DECLARED AND DECREED that Plaintiff is entitled to an

accounting for and payment of up to March 1, 2012, all underpaid royalties, and to an accounting

for and payment of all the proceeds of all production from the ]ustapor Lease (I) from March 2,

2012, through August 31,2014, and, (2) from September 1,2014, through the date Defendant

relinquishes possession less royalties already paid to Justapor and Mary Hansen under the

Justapor Lease; and Defendant is hereby ordered to provide the accountings and payments to

Plaintiff as stated in (I) above on or before the 31 SI day after this Judgment is signed and as

stated in (2) above on or before March 1, 2015 and continuing on be first day of each successive

3

1859
month for proceeds of production through the date Defendant relinquishes possession; and it is

further

ORDERED, ADJUDGED, DECLARED, AND DECREED that Plaintiff is entitled to a

conveyance from Defendant of mineral interests acquired under the Justapor Ranch, including

without limitation the 803 acre tract described in the Justapor Lease, as well as ail other

additional interests and improvements acquired in or under the Justapor Ranch, such as mineral

interests, leasehold interests, or any other interests acquired by lease, deed, or otherwise; and

Defendant shall fully effectuate such conveyance on or before the date this judgment becomes a

final, non-appealable judgment; and it is further

ORDERED, ADJUDGED, DECLARED, AND DECREED that Defendant take nothing

on each of Defendant's counterclaims in this malter; and it is further

ORDERED, ADJUDGED, DECLARED, AND DECREED that Plaintiff is entitled to

damages in the amount of all proceeds from the sale of oil and gas produced from the Justapor

Lease from the date of termination until the date of final non-appealable judgment in this matter

less royalties already paid to Justapor and Hansen under the Justapor Lease and thereafter until

Defendant relinquiShes possession to Plaintiff; and it is further

ORDERED, ADJUDGED, DECLARED, AND DECREED that Plaintiff is entitled to

and shall recover from Defendant the following damages:

a. Actual damages for Defendani's trespass, for the proceeds from sale of oil and gas

produced by Defendant from Plaintiff's land described in the Justapor Lease (less

royalty already paid to Justapor and Hansen under the Justapor Lease) from the

4

1860
 date oftennination (March 2, 2012) through August 31, 2014, in the amount of

$12,038,042;

b. Actual damages for Defendant's trespass, for the proceeds from sale of oil and gas

produced by Defendant from Plaintiff's land described in the Justapor Lease (less

royalty already paid to Justapor and Mary Hansen under the Justapor Lease) from

September 1, 2014, through the date Defendant relinquishes possession to

Plaintiff;

c. Actual damages for Defendant's breach of contract in the amount of$3,619.00;

d. Prejudgment interest through November 20,2014 on the amounts set forth in (a)

and (c) above in the amount of$603,233.00;

e. Prejudgment interest on the actual damages incurred after September 1, 2014 until

November 20, 2014 at the rate of 5% per allilUm non-compounded;

f. Court costs through trial and appeal; and

g. Postjudgment interest on all of the above, from the date of this Final Judgmem

until all amount, are paid in full at the rate of 5% per annmn compounded

annUally.

This Final Judgment disposes of all parties and all claims and is appealable.

5

1861
IT IS SO ORDERED.

/(1
SIGNED this ~ day of November, 2014.
I
1/1 IV
The Honorable JUdgrftltJ
U

6

1862
 CAUSE NO. 2013-CV7-001396-Dl

JUSTAPOR RANCH COMPANY, L.C. §
§
Plaintiff, §
§
"s. §
§
ESCONDIDO RESOURCES II, LLC, §
§
Defendants §
§
§
§ 49th JUDICIAL DISTRICT

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

On this the ~ day of September, this Court considered Plaintiff Justapor Ranch

Company, L.C.'s ("Plaintiff') Motion for Summary Judgment and Plaintiff Justapor Ranch

Company, L.C.'s Supplement to its Motion for Summary Judgment Evidence (collectively, the

"Motion"). The panies appeared before the Coun for the hearing on the Motion. After

considering the pleadings, the Motion, Defendant Escondido Resources II, LLC ("Defendant")

Response, Plaintiffs Reply, evidence on file in connection with all motions for summary

judgment, and arguments of counsel, the Coun GR.<\NTS the Motion in full. It is, therefore,

ORDERED, ADJUDGED AND DECREED that the Motion be and hereby IS

GR.<\NTED in all respects, it is further

ORDERED, ADJUDGED AND DECREED that the oil and gas lease between the panies

(the "Justapor Lease") is terminated, and was terminated as of March 2, 2012; and it is further

ORDERED, ADJUDGED AND DECREED that the ownership of the minerals covered

by the Justapor Lease has reverted to Plaintiff as on.'larch 2, 2012; and it is funher

1

1796
.'

ORDERED, ADJUDGED AND DECREED that Plaintiff is the sole and rightful owner

of all interests conveyed by the Justapor Lease and is the owner in fee of the mineral estate; and

it is further

ORDERED, ADJUDGED AND DECREED that Defendant is not entitled to remain in

possession of the minerals or other property covered by the Justapor Lease and shall surrender

possession thereof to Plaintiff; and it is further

ORDERED, ADJUDGED AND DECREED that from March 2, 2012 through the date

hereof Defendant Escondido Resources II, LLC CDefendant") has remained, and remains, in

unlawful possession of minerals covered by the Justapor Lease as a bad faith trespasser, and is

not, and has never been, a good faith trespasser; and it is further

ORDERED, ADJUDGED AND DECREED that Plaintiff is entitled to an accounting for

and payment of up to March I, 2012, all underpaid royalties, and to an accounting for and

payment of all the proceeds of all production from the Justapor Lease from March 2, 2012

through the date of final non'appealable judgment in this matter less royalties already paid under

the Justapor Lease; and Defendant is hereby ordered to provide such accounting and payment to

Plaintiff; and it is further

ORDERED, ADJUDGED AND DECREED that Plainti

from Defendant of mineral interests acquired under th ustapor Ranch, including without

limitation the 803 acre tract described in the J por Lease, as well as all other additional

interests and improvements acquired in or nder the Justapor Ranch, such as mineral interests,

leasehold interests, or any other int sts acquired by lease, deed, or otherwise; and Defendant

2

1797
 shall effectuate such conveyance on or before the date this judgment becomes a final, non-

appealable judgment; and it is further

ORDERED, ADJUDGED AND DECREED that Defendant take nothing on each of

Defendant's counterclaims in this matter; and it is further

ORDERED, ADJUDGED AND DECREED that Plaintiff is entitled to damages in the

amount of all proceeds from the sale of oil and gas produced from the Justapor Lease from the

date of termination until the date of final non-appealable judgment in this matter less royalties

already paid under the Justapor Lease and thereafter until Defendant relinquishes possession to

Plaintiff; and it is further

ORDERED, ADJUDGED AND DECREED that Plaintiff is entitled to and shall recover
-------
f, mD,f,,,,.m ili, follow'" d'm.,'" /

\"r a. Actual damages for Defendant's trespass, for the proceeds,from sale of oil and gas

\Y produced by Defendant from Plaintiffs land described1n the Justapor Lease (less

\~~
~
/
royalty already paid under the Justapor Leas/from the date of termination

(March 2, 2012) through February 28, 2014/lie amount of$10,413,114.00;

»-~. S b. Actual damages for Defendant's trespass, for the proceeds from sale of oil and gas

produced by Defendant from Plaintiffs Ik described in the Justapor Lease (less

~ ," roy.hy ,'~.dy p.1d "doc ,., J''''7!l~;o) from M~h I, 2014, mea'rilng of Article II hereof for such entire annual period (whether or not there occurs
,"perlodJc production during such annual period); provided, however, that no gas well
',: :may, be held under the provisions hereof proViding for payment of Shut·ln Gas Royalty
'"payments In lieu of actual production, for more than two (2) consecutive years after
,,.t~e ,~xplratlon of ,the primary term. Such Shut-in Gas Royalty will operate to extend
,:'"suchilease for six (6) month period or periods, only. Such Shut-In Gas Royalty payments
to be timely, shall be made as follows: on or before thirty (30) days after the date the
well Is shut-In or, If the well Is shut·ln during the primary term, on or before thirty (30)
..days after the date on which said well Is shut·ln or thirty (30) days after the date this
lease ceases to be otherwise maintained, whichever Is later. The term "shut·ln" as used
herein shall mean the later of the date that a well Is completed or the date that a
commercial well ceases actual production. The term "completed or completion" as used
herein shall mean the date thirty (30) days after the date that the well Is drilled to Its
permitted depth as reflected on forms flied with the Texas Railroad Commission.
Nothing herein shall relieve Lessee of Its duty to market such gas production pursuant
to the Reasonably Prudent Operator Standard, as that standard Is deflned by Texas
case law, now or hereafter.
In the event that Lessee exerclses Its rights under the foregoing provisions of
this subparagraph (h), Lessee shall, conduct appropriate and adequate tests of each
shut-In gas well designated by Lessor to determine whether such deSignated gas well Is
actually capable of producing gas In paying quantities. Such tests shall be conducted at
times selected by Lessee, but not more than thirty (30) days after which Lessee has
shut In the well or wells. Lessee shall give Lessor reasonable notice prior to conducting
such well tests and Lessor or Lessor's representative shall have the right to be present

988
 at all testing and shall be entitled to receive full Information, Including all data and
Interpretation, In connectIon wIth such testing. In the event any such test reveals that
the well or wells tested (on a well by well basis) are non-commercial as provided In
Article XIII hereof, It shall be considered that such well or wells have ceased to produce
gas in paying quantities on the date of the test of each such well.

Lessor shall have the same privileges as above outlined to test any 011 well on
said fands and obtain and deliver operating expense and revenue data on each such
well and If such test and examination reveals that such oil well or wells are not
producing In paying quantities, then such well or wells shall be considered as having
ceased to produce 011 In paying quantities on the date of such test, and such well shall'
not qualify as a productive well, the acreage allocated thereto shall not be held thereby.

No shut-In royalty shall be due during the primary term of this lease.

(I) Subject to the other provIsions contained herein, after the primary terms of
this lease, Lessee shall pay to Lessor an Annual Minimum Income which shall never
be 'Iess than the amount of SIXlY AND NO/100THS ($60.00) DOLLARS per acre, for the
acreage held by this lease. The Annual Minimum Income to Lessor herein shall be paid
: within thirty (30) days following the third anniversary of the execution of this lease and .
' .. -each ;following annual perIod thereafter. Lessee shall calculate the royaltIes paid to
:·Lessor durIng such annual period and If less than such minimum payment amount, then
.-Lessee shall pay-or tender such difference to Lessor withIn such thirty (30) day perIod.

. . : . (j) In the event that Lessee Is entitled to receive from a pipeline purchaser of
:·gas production from this lease under a "take or pay" or similar provision In Lessee's Gas
Purchase Contract, a sum of money for gas production not taken hereunder, Lessee
shall be requIred to pay to Lessor, hereIn, one-fourth (1!4th) of all of such sums of
money paid to Lessee under the "pay" provisIons thereof, without reductIon,
whatsoever, which monies shall be paid by Lessee to Lessor hereIn within sIxty (60)
days from receipt thereof by Lessee. Lessee shall not be entitled to any credit upon Its
royalty obligations hereunder to Lessor or for any other reason.

IV.
This Is a paid up lease and no delay rental payments are due hereunder to
maintain this lease in effect. Except as otherwise provided herein, Lessee, during the
prImary term of this lease, may, at anytime, execute and deliver to Lessor a release
covering this entire lease, only, and thereby be relieved of all future obligations
regarding thIs lease, save those obligations which survive the termination of this lease
as stated herein. Lessee, after expiration of the prImary term, may, at any time,
execute and deliver to Lessor or releases covering any portion of the above-described
premises and thereby surrender this lease as to slich portion and be relieved of all

989
 future obligations as to the acreage surrendered except as to the drainage provisions
of Article V.

V.
If, prior to discovery of oil or gas on said land, Lessee should drlll and abandon a
dry hole or holes thereon, or If, after discovery of all or gas, the production thereof
should cease from any cause, this lease shall not terminate If Lessee commences
drilling, additional drilling or reworking operations within ninety (90) days thereafter.
Such drilling or reworking operations shall be prosecuted with no cessation of more
than sixty (60) consecutive days between the completion of a well as a producer or dry
hole and the commencement of drilling or reworking operations on an additional well.
Such drilling or reworking operations shall be prosecuted with no cessation of more
than thirty (30) consecutive days. Subject to the provisions of Article XlV, If at the
expiration of the primary term, all 01' gas Is not being produced on said land, but Lessee
Is then engaged 10-bona fide drilling or reworking operations thereon, this lease shall
remain In force and effect so long as such bona fide operation or operations on said
well or any additional well or wells are prosecuted, with no cessation of more than
ninety (90) consecutive days, between the completion of a well as a producer or a dry
hole ·and the commencement of drilling or reworking operations on a subsequent well,
~and JI~ they result In the production of 011 or gas In paying quantities, so long thereafter
.. as .01[ or gas In paying quantities Is produced from said land. The term "drilling
':opera,tlons" as referred to In this agreement, shall mean actual drilling operations with a
drillil'\g rig on location on Leased Premises, together with all attendant eqUipment
needed to drill a well to the permitted depth, with the drill bIt actually making hole. The
term "~\rewol'klng operations", as referred to In this agreement, shall be construed to
mean the actual reworking or deepening of a well that on Leased Premises, with the
eqUipment necessary on location to condl,lct such reworking of such well and actually In
the operation of reworking of such well or wells and the prosecution of such operations
without cessation for longer than thirty (30) days. Only a well that has been previously
completed as a producer may be reworked. The provisions of this paragraph shall
control over the doctrine of temporary .cessatlon of production, which doctrine shall
never be construed to be applicable to this lease.

Lessee agrees that In the event an' off-premises well Is draining the leased
premises, Lessee will drill, complete and produce such offset well or wells on this leased
premises as a Reasonably Prudent Operator would under the same or similar
circumstances Lessee shall commence operations to drill such offset well not later than
ninety (90) days from the date of the first production of the draining well. Any off lease
well drilled within or whose well bore, where prodUCing, passes within 1,000 ft of the
leased property, shall be presumed to be draining the leased premises.

In lieu of drilling an offset well on the leased premises, Lessee may elect to pay
a . compensatory royalty equal to 25% of the gross production and quality of gas

990
 procluced from the draining well so long as the draining well Is In production. If the
BTU content of the gas produced from the draining well Is not known, the highest BTU
content from production on any well on this lease shall be used In the calculation of
compensatory royalty due Lessor. Lessee 'shall either drill or pay a compensatory
royalty within 60 days of first production of any draining well. Lessee Is prohibited from
releasing any acreage subject to the offset well obligation, In lieu of drilling or paying
compensatory royalty. Lessee must protect the premises from drainage on a well-by-
well basis. Lessee shall not defend a claim for damages resulting from drainage by
contending that production between the leased premises and the draining land will
"balance out" In light of future production or development of the lease.

If, this lease Is kept In effect by the payment of Shut-In Gas Royalty, and gas Is
sold and delivered from an off-premise well located within one thousand (1,0001 feet,
of the leased premises, the right to continue to maintain the lease by paying the Shut-In
Gas Royalty shall cease. The lease shaH only remain In effect upon the drilling and
completing of an offset well or payment of a compensatory royalty as stated.above.
TermInation of this lease does not relieve the Lessee of paying a compensatory royalty
during the life of the production of the draining well or wells. The compensatory royalty
Is to be paid monthly.

VI .

. Lessee shall perform all terms of this lease, and any amendments thereto, In
utmost good faith, and the failure to comply with this provision shall operate as a
.' .' .. limitation on this lease to the same extent as though no such term was performed or
com~iled with.

VII.

Lessee shall have a continuIng duty and obligation to plug any well drilled or
used on this lease within 90 days of (a) the abandonment of such well as a dry hole by
Lessee of any such well or wells, or (b) the cessation of production as defined
hereunder In Article XIV, all pursuant to plugging requirements of the Texas Rallroad
Commission or Similar jurisdictional authorlly. Following such plugging on a well by. well
baSiS, Lessee shall be obligated to remove from each well site, all well equipment and
pipes and to restore the area thereof, as provided for under Article XVH, subparagraph
(g) of this lease.

VIII.
(a.) lessee Is prohibited from assigning or transferring any Interest herein leased
to lessee hereunder, In whole or In part without the prior written consent of Lessor,
which shaH not be unreasonably withheld. In the event of an assignment or partial
assignment of this lease with consent of Lessor first obtained In writing, It Is agreed that

991
 the foregoing prohibition of assignment without Lessor's consent shall extend to ali
permitted Assignees, of any part 01' parcel of this lease and any such Assignment will
cause the Assignee thereof to becOme jointly and severally obligated With Lessee to
perform all express and Implied obligations owed by Lessee herein to Lessor'(and the
other royalty owners claiming under Lessor) as to all covenants, terms and prOVisions of
this iease, express or Implied, which shall be considered as covenants running with the
title of this lease and binding upon any permitted assignee or sub-lessee of Lessee and
shall extend to their respective permitted and consented to heirs, successors and
assigns. Any attempted assignment or partlai assignment of this iease without the
written consent of Lessor shall be null and void, In no event may any assignment of this
lease ever operate to reduce or extinguish the obligation of Lessee, which accrued prior
to such assignment 01' partial assignment. Lessee agrees that it's permitted aSSignments
of this lease, or any part thereof, shall not be binding or effective until It furnishes
Lessor with copies of such aSSignments. It Is agreed that the term "ASSignment" shall
extend to any transfer of lease rights, conditional or unconditional, whether labeled as a
farm-out, aSSignment, transfer, or some other label Involving a transfer or permit of any
or all of Lessee's rights hereunder to a third person.

(b) Lessor may fully aSSign or transfer any of Its rights hereunder, but in such
" " event, It is agreed that any such change, transrer or division of Lessor's rights
, .'
:\
. hereunder shall not operate to enlarge the obligations or diminish the rights of Lessee.
. No.s~le or assignment by Lessor shall be binding unless Lessee has been advised In
.wrltlng of such conveyance, In the event of the death of any person entitled to rentals,
.; royalties or other payments hereunder, Lessee may make such payments to the credit
": of the deceased or the estate of the deceased, until such time as Lessee Is furnished
With :':proper evidence of the appOintment and qualification of an executor or
administrator of the estate, or if there be none, then until Lessee Is furnished with
eVidence as to. the heirs or devisees of the deceased and that all debts of the estate
have been paid, at which time all such payments shall be made to the appropriate legal
representative, heir or devisee of such deceased owner,

IX,
Lessee agrees to use only so much of the surface of said lands as Is necessary to
exercise Its rights hereunder. Lessor does not warrant title to the Oil and Gas Leasehold
Estate covered hereby. Lessee represents that It reviewed and approved title of Lessor
and represents to Lessor that the lands covered hereby were free of third party claims.
Lessee, In connection with Its operations upon the lands covered hereby, shall have all
those rights herein expressly provided for, with all other rights, which could be applied
to operations upon lands covered hereby, being expressly reserved by Lessor. Rights to
surface use and penetration of formations beneath the surface of lands herein
described, by Lessee are subject to all terms and provisions o~ this lease and are non-
exclusive, with exception of those areas or locations upon which are situated Lessee's
operating drilling, production, treatment, storage, separators or other related

992
equipment to such operations whIch shall be exclusively used by Lessee durIng the term
of such operations, subject to reasonable access rights thereto by Lessor for the
exercise of Lessor's rights hereunder.

x.
In the event Lessor consIders that operations are not at any tIme being
conducted In compliance with this lease, Lessor shall notify Lessee In writing of the
facts relied upon as constituting a breach thereof, and Lessee, If In default, shall have
thirty (30) days after receIpt of such notIce In which to comply with the obligatIons
Imposed by virtue of thIs Instrument. Failure to correct such breach within the time shall
cause the lease to forfeIt and revert to Lessor.

Xr.

· .' b) On or before 90 days from the date of execution of this lease, Lessee shall
drlll or cause to be drilled a water well to a minimum depth of 1800' not
to exceed a depth of 2,200' sufficient to secure production of water from
the Trinity (or Carrizo) sands. Lessee shall install all equipment, tanks,
pumps, and delivery lines as necessary to secure and deliver water as
stated herein. Lessee shall have the non-exclusive license to use such
water as It deems necessary for the drilling, completion, and reworking
operation of any well on or off the leasehold that It drills, completes, or
reworks as operator. Lessee shall bear all expense of upkeep,
maintenance, repair, equipment replacement, and cost for such well.
Lessor shall at all times have full use and enjoyment of water from the
well, and may at Its own expense install pipe, tanks, or other delivery on
the land. llt1e and ownership of all equipment and property shall pass to
Lessor upon the eXpiration of the lease. For all water to be used drilling
operations off-lease, Lessor shall Install pipe and delivery apparatus
sufficient to deliver water to tank trucks, at a locatIon selected by Lessor,
ImmedIately outside the boundary fence of the of the surface of the
property covered by thIs lease. Lessee's license to use water from the
well Is exclusive to Lessee and Is non-assIgnable. Lessee shall not use any
water from the well for any purpose other than Its own drilling,
completion, and reworking operatlonsi and

993
 c) On or before one year from the date of execution of this lease, Lessee
shall dr1l1 or cause to be d"llIed a second 011 or gas well to the depth of
9,000' or to the base of the Olmos formation If shallower, below the
surface sufficient to test and produce commercial quantities of
hydrocarbons from the Olmos formations

If Lessee can demonstrate that Is unable to secure a drilling rig during the time
periods required herein, such time periods may be extended for no more than sixty
days. If Lessee falls to comply with any of the forgoing provisions, It shall pay lessor
liquidated damages in the amount of $150,000 per provision not complied with ,no later
30 days from the date of such failure to comply with the terms Of this article.

XII.

By the acceptance of this lease, lessee agrees to all of Its terms, provisions and
conditions, which shall also Inure to the benefit of and be binding upon Lessee's
successors and permitted assigns. All payments of monies hereunder by Lessee to
Lessor are payable to lessor In Webb County, Texas, at the address herein stipulated or
such':other address as Lessor notifies Lessee, In writing.

XIII.
. ' In the event this lease Is continued In force and effect by production of 011 or gas
.. , " !n paying quantities or by drilling operations (as defined under Article V of this lease),
, which· result In production of all or gas In paying quantities which perpetuate this lease
within the meaning of Article II hereof, on or after the expiration of the primary term of
this lease, then, In such event, It Is agreed that such production shall only perpetuate
this lease as to that well unit acreage which Is equal to that amount of acreage per well
which such well will reasonably drain, subject to the provisions dealing with reduced
production and marginal wells, hereafter defined. In no event may any well ever
perpetuate lease acreage In excess of forty (40) acres, and as to all other acreage
covered hereby, Lessee covenants and agrees, subjectto the provisions for Continuous
Drilling Operations as hereinafter provided, to execute and deliver to Lessor a
recordable written release as to any and all Of such other acreage not so allocated to a
producing or shut-In well or wells. The acreage allocation per well shall be made within
sixty (60) days following completion of the last well completed on this lease or the
cessation of drilling operations under the continuous development provisions of this
lease, whichever time period occurs later. In the event Lessee falls to make such unit
allocations following (60) days' wrllten notl~e from Lessor, Lessor reserves the right to
make such unit allocations based upon the acreage area which any such completed well
will reasonably drain (not to exceed however the above unit sizes), by the filing of unit
deSignations of record In the Office of the County Clerk of Webb County, Texas, and the

994
 acreage covered hereby which Is not allocated to any such well or wells shall no longer
be held by this lease.

In the event that this lease has been perpetuated by production of all or gas In
paying quantities as above provided for on or after expiration of the primary term,
hereof, then the release of such unallocated acreage to well unit or units may be
postponed only In the event that within a period of ninety (90) days after the expiration
of the primary term hereof or the completion of the last well drilled on this lease
fol/owlng expiration of the primary term (whichever occurs last) Lessee commences
drilling operations (with adequate drilling rig and equipment to drill and complete the
contemplated well) of an additional well or wells on such unallocated acreage and, In
such event the entire lease shall remain In force so long as such drilling operations on
said additional well or wells are prosecuted with reasonable diligence, -and If after the
completion or abandonment of any such well, Lessee commences the drilling of an
additional well or wells within ninety (90) days from the completion or abandonment of
the preceding well, and If Lessee continuously conducts drilling operations In good faith
and with reasonable diligence on said lease, without any cessation for longer than
thirty (30) days, this lease shall remain In full force and effect duling such drilling
operations and until the end of ninety (90) days after the completion or the
,abandonment of the final wel/; at which time, this lease as to all rights granted
" .. hereunder shall automatically terminate as to all acreage covered hereby, LESS AND
EXCEPT all acreage allocated to a producing all or gas well or wells on a well unit by
well i,\.Jnlt basis as hereinabove provided for. Lessee shall be obligated to release-all
"
acreage and depths not so allocated to a producing 011 or gas well or wells as herein
"provIded. The term "completion" as used herein, regarding any well drilled on this
, \ lease; shall have the following meanings: (a) as to a dry hole, shall mean the date of
cessation of drilling by the drilling rig on location; (b) as to a producer of oil, shall mean
fifteen (is) days following date of cessation of drilling by the drilling rig; (c) as to a
producer of gas which does not Involve the fraclng of said well, shall mean thirty (30)
days following the date of cessation of drilling by the drilling rig; and (d) as td a
producer of gas which extends to fraclng of the well, shall mean sixty (60) days
following cessation of drilling by the drilling rig.

It Is further agreed that at the expiration of the primary term, or at the end of
such extended period of drilling operations, as hereinabove provided for under this
paragraph, whichever occurs later (conditioned upon this lease or any part thereof
being perpetuated by production at such time), production from any of said well or
wells shall only perpetuate this lease as to depths above the base of the de~pest all or
gas strata from which production actually occurs In each such well bore hole, and this
lease as to all rights granted hereunder on a well unit by well unit basis below the base
of each such 011 or gas strata shall terminate. The provisions of the foregoing shall be
applicable on a well unlt-by-well unit basis, and the acreage and strata herein alloca,ted
to each well on a well unit basis shall be held hereunder only for and so long as such
well to which such acreage relates produces oil or gas therefrom In paying quantities, or

995
 this lease ,as to any such unit or units, Is othelWlse maintained In force and effect under
other provisions hereof. Horizontal wells shall hold wells In the form of a unit agreed '
II'
upon by Lessor or Its representative. •

Lessee agrees to execute proper releases at the appropriate times to
acknowledge termination of this lease as to such undeveloped acreage or strata or
cessation of production of any well unit or units, from time to time, during the term of
this lease,pursuant to provisions of the foregoing paragraphs. .
"
The acreage retained under this lease as to each producing well, (except the well
bore gas and/or 011 well) as hereinabove provided, shall be selected by Lessee In a
contiguous blocked form surrounding each such well, except in the case of horizontal
wells, which shall be selected as provided for above.

At such time as a partial termination or terminations of this lease occurs under
the provisions of the foregoing paragraphs (requiring releases by Lessee), each such
retained tract and/or retained well bore as to which this lease has not terminated shall
be co.nsldered as a separately leased tract and/or well bore In the same manner as
though Lessor had executed separate and distinct leases covering each such tract
and/or well bore as to the 011 and gas strata held thereby. Notwithstanding a partlal
'termlnation of this lease under the above provisions, It Is agreed that Lessee shall have
:and r.etaln such easements of Ingress and egress over those lands covered hereby as
, . shall ;be necessary to enable Lessee to develop and operate the portion or portions of
this lease that continue in force and effect by the production of 011 or gas therefrom,
.'and I~ Is further agreed that It shall not be necessary for Lessee to remove or relocate
,any plpellnes, tank batteries or other surface equipment or Installatlon from any portion
of this lease which have terminated, for so long as same continue to be used for
development and operation of such portion of this lease as Is continued In force and
effect.

It Is agreed that the foregoing provisions shall not be construed to reduce
Lessee's duty to reasonably develop all of this lease In the same or similar manner as
would a Reasonably Prudent Operator under the same or similar facts and
circumstances, with Interests of itself and lis lessor in mind.

XIV.

Royalties payable to Lessor In the manner hereinabove provided for are due and
payable to Lessor within a period of sixty (60) days following each month's production
of 011 or gas produced and sold from the premises. Thereafter, such payments shall be
delinquent and will bear Interest at the rate of Ten (10%) percent per annum,
compounded monthly, until paid. In the event that such royalties ar~ not paid and
become delinquent, and there Is no title dispute or title defect, this lease shall
terminate Ipso facto on the date that such royalties were due and not paid. In the event

996
 such royalties are not paid and become delinquent, Lessor wlthqut other notice than
this paragraph, shall be authorized to flIe suit In the District Court of Webb COunty,
Texas, for recovery of such delinquent royalties, together with such Interest thereon
and expenses of collection thereof, Including court costs, expert and accounting costs,
and reasonable attorneys fees. Notwithstanding the foregoing provisions, It Is
understood that a greater length of time might be required following first production to
obtain title examination and proper division orders, and It Is therefore agreed that such
time period of sixty (60) days shall be extended for an additional reasonable period of
time for such purposes, not to exceed, however, an additional sixty (60) days, or until
such time as division orders by Lessor, guaranteeing their respective Interest In such
production, are furnished to Lessee, whichever occurs first. If required by Lessor,
Lessee agrees that the form of drvlslon order selected by Lessor, which only certifies
royalty ownership of Lessor, shall constitute the agreed upon form of division order
between the parties notwithstanding any statutory provision to the contrary. With
respect to all third party royalties payable hereunder, Lessee assumes all obligations for
the proper payment of all third party royalties.

XV.

" lt Is agreed that Lessor may hereafter execute leases for the exploration,
,development and production of any minerals not covered by this lease Including but ,not
IImlte,9 to 011 and gas formations (not then covered by this lease), uranium and other
'fjsslonable materials, to third persons and to grant rights to such third persons to use
the surface for such purposes and to penetrate the strata and horizons covered hereby,
1 provided that any such subsequent lease expressly provides that same Is subject to this
011 and gas lease, but any such minerai lessee shall be authorized to penetrate the 011
and gas formations covered hereby provided that such penetration does not unduly
Interfere with existing operations of Lessee hereunder.

XVI.
Lessor shall be entitled, upon request In writing to Lessee, to be furnished with
copies of any and all tests, together with all of the Interpretations of the tests, made of
any gas production from the premiSes, setting forth the quality of such gas, Its BTU
content and any constituents of gas, such as, but not limited to, distillate, ethane,
propane, butane, etc. Further, Lessee agrees to furnish to Lessor upon their written
request, true copies of any soniC, electrical, porosity or other type of log or survey of
any such well together with the analysiS and Interpretation of Information and data from
any core tests or wire line tests conducted on said well or wells. Further, Lessor (or
Lessor's representatives) shall have access (at their own risk) to the drilling floor of any
well on this lease and to be furnished with all drilling and testing Information, which
Lessor agrees to keep confidential during drilling, testing and completion of said well.
Lessor shall be entitled to full facts and Information with respect to any geophysical
operations conducted by Lessee upon this lease, or In conjunction with this lease. In

997
 this connection, Lessor shall be entitled to be furnished by Lessee, at any time during
the term of thIs lease or wIthIn four (4) years following the expiration of this lease,
whichever Is longer, with the followIng:

1. The final base map showIng locations of all 3-D senderos (all geophone
stations and vIbrator points) along which data was recorded.

2. Paper seismic sections of data recorded along all 3-D senderos on lands
hereInabove described and to Indude one-half (1/2) mile outside the boundaries
thereof, of such additional distance as to jOint operations Involving adjoInIng leases so
as to extend the length and width of such adjoining leases.

3. Both final stack and migrated seIsmic sections will be In Lessee's standard
format which will be a scale of five (5') Inches per second and a trace spacing of twelve
(12) traces per Inch. The title block will provIde conventional field and processing
parameters. All such data and Information shall be kept confidential by the undersigned
Lessor and used by them only for their own knowledge and development of theIr own
lands located in Webb County, Texas. The undersIgned Lessors agree to Instruct any
representative employed by them to view and take notes on such seismic data to keep
such.lnformatlon confidential outside of the use of saId Lessors.
" ,
" ',: 4. Lessee agrees l'O notify the undersigned Lessor, with notIce of completion of
"
any geophysical work performed on this lease or any adjoining leases In conjunction
with this lease and shall provide all of such data, maps and Information referred to
lIbove.; as well 8S all Interpretation and analysis of such data or Information, If any, at
'any time during such perIod above stipulated as requested by Lessor. In addition,
Lessor reserves the right to have Its own geophysIcIst or other representative view such
3-D seismic or other geophysical data obtained from geophysical operations conducted
upon thIs lease or In conjunction wIth this lease by Lessee (any other entity authorized
by Lessee). Lessee agrees to maIntaIn control and authority over all of such geophysical
data secured from eXploratory operations on thIs lease or In conjunction with this lease
for viewing by an authorized representatIve of Lessor. Lessor or Lessor's geophysicist or
other representative may view the data, maps, or InformatIon mentioned In this lease,
together with all Interpretation and analysis of such data or Information, durIng normal
business hours and upon 10 business days written notice from Lessor to Lessee. Lessee
shall make all of such data and Information available for viewing and copying by Lessor
or Lessor's representatives under the aforementioned confidential agreements. Such
presentation and showrng of data shall extend to Lessor's programs and workstations In
order to facilitate the Interpretation of such data for the benefit of Lessor.

XVII.
Lessee agrees to notify Lessor and Lessor's representative prior to entry upon
Leased Premises by Lessee to go upon Leased Premises, to conduct drilling, re-worklng

998
 or exploratory operations upon lands covered by this lease and the approximate
location of such operations. Lessee agrees to coordinate with Lessor's representative
prior to beginning operations, In order to agree In writing on Size, location and payment
for surface damages, on drill Sites, roads, pipelines, flow lines or any other construction
that may be needed.

It Is further agreed:

(a) Lessee Is authorized the non-exclusive use of existing roads upon leased
premises and be required to use perimeter roads where practical, provided that Lessee
first reconstructs such roads as all weather roads capable of bearing heavy "oilfield"
type of equipment and keeps such road or roads so used, maintained and In good
repair. Lessee agrees to apply and maintain according to the manufacturer's
specifications, "Dustchchek" or any similar product approved by the Surface owner to all
roads, drill Sites, or other sites used in Lessee's operations. In the event such existing
roads do not extend to areas on the lease upon which Lessee desires to conduct Its
operations, then lessee shall be authorized to construct new lease roads (whether one
or more than one) which are requlr!ld for providing access to Lessee to the area of this
lease upon which Lessee has elected to conduct drilling operations hereunder. In such
evenli such new lease roads must not exceed forty (401 feet In wIdth, shall be
,constructed as an aI/ weather road (whether one or more and by the route designated
, by Surface Owner) capable of bearing heavy "oilfield" type of equipment and shall be
kept l,n good repair and maintenance throughout the term of this lease.
"
, ,("After a road Is no longer needed In Its operations, Lessee shall, at the option of
'the surface owner, remove the caliche and/or other road materIal from the surface and
shall restore the lands utilized for such roads to their original condition. For the
propose of this lease, to restore the surface to Its' "original condition" shall mean to
remove any foreign materials, do any remediation required and to replace any topsoil
which was removed from such site during or preceding Its construction. Lessee shall
then disc such restored site with a heavy brush type disc and then seed with grasses
selected by Surface Owner at a rate of not less than eight (8) pounds per acre. At the
option of the 'lessor, Lessee shall perform such dlsclng and seeding work at a time
designated by Lessor or pay the Lessor so that the Lessor may perform such work at
their convenience.

Lessee will Install new drainage culverts Inroads used or constructed by It of
sufficient size to keep water from washing out the road and/or backing up normal water
flow. Lessee wlll water lease roads at times of heavy traffiC to prevent dust, and dust
accumulation on vegetation, caused by such traffic. Lessee will keep the sides of the
roads cleared to their original width of construction by mechanical mowing. Lessee
agrees to post proper and adequate speed limit slgnage limiting traffic to twenty (20)
mph.

999
 (b) With respect to divIsion or InterIor fences, (as distinguished from boundary
fences, which may not be cut by Lessee), between the pastures comprIsIng leased
premIses, Lessor believes that adequate fence crossIngs are already' available for
existIng roads or senderos and that no new opening need to be made. However, If after
agreement with Lessor, It becomes necessary to cut an existing divIsIon or InterIor
fence In cpnnectlon with a new lease road to be constructed by Lessee along a route
required by Lessee to conduct Its operations hereunder (as authorized under the
preceding subparagraph (a) of this paragraph), or to widen an existing fence crossing,
then In either of such events, only, may Lessee cut such existing or Interior fences
crossed by such proposed lease road as required for access way of Lessee, provIded
that prior to any such cuttIng, Lessee must first place two (2) "corner type" posts with
"H" braces on eIther sIde of such proposed cut with the fence wIres securely fastened
thereto so as to prevent any sagging of fence wires when the cut Is made between such
"H" braced posts. Lessee shall use four (4") Inch oilfield type eight (8') foot long steel
pipes set firmly at least three (3') feet Into the soli, embedded In concrete with three
(3'') Inch steel pipe braces between such double steel pIpes on either side of such
proposed cut. Lessee shall then Install a double eight (8') feet one (1'') Inch steel pIpe
gate .Into such opening, whIch shall be hung from the opposite corner posts In such a
manner that the bottom of such gate shall be no higher than sIx (6'') Inches above the
,5011 and shall be at least five (5') feet In height, and approXImately eIght (8') feet In
width ,so as to form a closure of such constructed opening. Such gate shall be kept
locked by Lessee, wIth chaIn and lock with separate slots for a separate locks for Lessor
, ' and f9r surface owner so as to allow passage through such gate opening. All gates to
",' . be constructed by Lessee on the leased premIses shall be Single as opposed to double
,, gates.

(c) Lessee shall at all tImes except when passIng through, keep the entty gate
locked. Lessee, prIor to Initiation of drlllh1g operations shall, at Its own expense,
provIde a bonded gate guard, designated by surface owner, at the entry gate, who shall
maintain such entry gate locked at all times except when being traversed by authorized
personnel of Lessee.

Lessee shall exerCIse Its best efforts to keep the Lessor reasonably Informed of
the names of the representatives and contractors which Lessee Is utilizing In the
conduct of its operatIons on the lands covered hereby, and the business purpose for
beIng on the premIses. Lessee agrees to desIgnate In writing the name of the person or
persons to be present from tIme to time on said premises as current operations are
beIng conducted, with whom surface owner may dIscuss such matters and wIth whom
the Lessor may resolve any claIm for use, abuse, Injury and/or damage to livestock,
wild life, surface area or Improvements on saId premises, occasioned by or arIsing from
Lessee's operations or other activity on ,the leased premises. Lessee Is responsible for
the actions of all Individuals who enter upon the leased premises to perform any activity
under this lease.

1000
 (d) Under no circumstances shall any officer, agent, representative or employee
of lessee or any contractor or subcontractor or sublessee carry firearms on lands
covered by this lease, nor shall any such person collect artifacts, Including but not
limited to arrow heads, collect shed horns, collect fire wood, nor do any hunting,
fishing or bring any dogs on any land covered hereby. The presence of drugs and
alcohol on the leased premises are strictly prohibited. Any person violating the forgoing
prohibitions, or, using illegal drugs, alcohol, or on the premises without a'uthorlty or
business, shall be ejected and barred from the premises permanently.

(e) In the event exploratory operations are conducted under this lease, Lessee
agrees that all shot holes will be located a sufficient distance so as not to cause any
damage to such Improvements. lessee agrees to promptly fill In all shot holes and
restore the sUrface of the land to substantially the same condition as It was In before
the commencement of lessee's operations. In conducting seismic operations on leased
premises, Lessee agrees to use a high degree of care In keeping bulldozer operations
from making any unnecessary cuts Into the turf of the grass or otherwise unnecessarily
disturbing the surface of the land covered by this lease. Lessee shall terrace all
senderos on slopes of hills to minimize erOSion to lands of surface owner.

" (f) Prior to commencing drilling or re-worklng operations, Lessee shall promptly
fencEl, all pits to be used therefore, Including all salt water reservoirs with bull panel
fencing hung on such posts as to provide a strong enough enclosure so as to prevent
entry lnto such area by wlldllfe and livestock. Regarding any drilling fluids which are
harmful to livestock, wildlife or the propagation and growth of grass for livestock on
said lands, or to' the environment such as oil-based mud or harmful chemicals, Lessee
agrees to store the same In protected non-seeping reservoirs and following, drilling
operations, to remove the same from such reservoirs on such drilling location and to
dispose of the same off of this leased premises, at such time as such drilling fluids and
pits are no longer needed to conduct drilling or reworking operations on any well
location.

(g) Upon completion of drilling operations upon each well, which may be drilled
upon this lease, Lessee shall, with respect to the drilling location, perform the following
work:

1) If such drilling operations result In the completion of an 011 and Gas
well, then follOWing such completion and Installation of all production
equipment upon the drill site location, Lessee, with respect to the
remainder of the drill site location and the "earthen pits" constructed
thereon, Lessee agrees to restore each drill site area occupied by such
Pits, by the removal therefrom and froni this lease, of all drilling flUids,
which may contain hazardous or harmful chemicals, all oil base mud and
all other harmful chemicals as contained In such pits (which, as above

1001
 provided for, were required to have been stored In protected non"seeping
reservoirs) and to then allow such pit to be dried and following the drying
of such pit, to then fill the same from the surrounding earthen "berms" In
such a manner so that when filled, the upper fill shall consist of the
original top soli excavated In construction of such pit. All pits which
contain harmless drilling fluids shall be allowed to dry prior to restoration
of such pit as above provided for, which shall then be filled In the same
manner as above provided for so that the top soli originally excavated will
be replaced over such pit or pits and restored to Its' "original condition".

2) If such drllling operatlons result in a dry hole, Lessee shall remove
all well equipment, pipes and other materials related to drilling and
completion of such well as a dry hole and then proceed to remove
hazardous materials, fill pits and to restore the entire drill site location as
hereinabove required under subparagraph (g)(1) of this Artlc/e, which
restoration shall extend to the entire drill Site location.

(3) Upon completion of any well on this lease as a producer of 011 or gas,
Lessee agrees to fence the area upon which any production or storage or
treating eqUipment Is situated with a good and substantial fence capable
of turning wild livestock, except as to the well Itself which may be left
unfenced at Lessee's election. Such fenced area shall be kept In good
condition throughout the term of this lease In which such well Is not
abandoned and plugged. Lessee shall be required to maintain and paint
when necessary all drill site equipment, fences, gates and roadways on a
continuous basis.

(4) Upon cessation of production and abandonment of the producing well
on each drill Site, Lessee shall be required to plug the well as required by
Article VII of this lease and to clean up and remove all well production
eqUipment, pIpe, underground pipes and other equipment Installed by
Lessee on such drill site location related to the drilling, completion and
production from such well, with removal of the caliche or other location
materials underlying such well equipment and perimeter as stated above
and restore to I~ "original condition".

All remedial, clean-up and restoration work shall be performed no later than four
(4) months after completion or, abandonment of any well drilled on said lands or at an
earlier date If weather conditions permit.

(h) Lessee will not Inject any salt water or other deleterious substance Into the
subsurface of Leased PremIses. Nor shall Lessee ever have the right to store or dIspose
of salt water on Leased Premises or adjoining lands or adjoining water tables to this
lease. All saltwater must be removed from Leased Premises.

1002
 (I) Lessee agrees that in the conduct of any of Its operations, or those of Its
agents, employees or Independent contractors, It will not allow any cans, papers, trash,
old equipment, parts or any debris to be left on Leased Premises, but will continuously
keep such premises clean and In an orderly state.

(j) Lessee shall reqUire all pipe brought upon leased premises for any pipeline
purpose be comprised of entirely new pipe, fittings and appurtenances, all of more than
sufficient grade and quality to be utilized for such pipeline purposes Lessee Is prohibited
from bringing upon any of the leased premiSes, any used pipe or any new pipe with
scales such as defined In the Texas Regulations for Control of Radiation (TRCR) Part 46
(Licensing of Naturally occurring Radioactive Material (NORM), (adopted and published
June 1, 1993 In 18 Tex. Reg. 3516) effective July 1, 1993. Lessee must Inspect all of
drilling pipe brought upon the leased premises and assure Lessor, In writing, that such
pipe does not violate the foregoing Texas Regulations for Control of Radiation, All
oilfield pipe following completion of any well of this lease, shall be removed from lands
covered by this lease, unless such pipe Is to be used at another location In which event
shall be moved to such new location and stored on racks•• During the time that such
drilling pipe Is on location, such pipes shall be stored on racks In such a manner that
they r.;1II not make contact with the surface of such location.

Prior to the commencement of any operations on the leased premises,
and at all times thereafter during the existence of this lease, lessee
shall furnish valid Insurance certificates evidencing coverage, Including
the following:

I. WORKER'S COMPENSATION INSURANCE: covering all employees
engaged In operations on the lands subject to this agreement In
compliance with the laws of the state of Texas and EMPLOYER'S
lIABllfIY INSURANCE of not less than $1,000,000 for Injuries or
death of anyone employee and $10,000,000 for Injuries to or
death of more than one employee resulting from anyone aCCident;

II. GENERAL PUBLIC LIABILfIY AND PROPERlY DAMAGE: In
connection with all operations conducted hereunder, with bodily
Injury and death limit of not less than $1,500,000 for Injuries to or
death of more than one person resulting from anyone accident,
and not less than $10,000,000 for Injuries to or death of more than
one person resulting from anyone accident; and properly damage
limited of not less than $1,000,000 per accident, and $5,000,000
aggregate. Such property damage Insurance shall not exclude
liability for loss of or damage to properly on or above the surface
of the earth arising from a blowout or cratering of a 'gas or all well,

1003
 and shall not exclude damage to the earth arising from spills of oil,
chemicals or other deleterious substances or materials;

III. AUTOMOBILE PUBLIC LIABILITY AND PROPERTY DAMAGE: In
connection with all operations conducted hereunder Including
coverage on owned and non'owned automotive equipment with
bodily Injury or death limit of not less than $1,000,000 for Injuries
to or death of anyone person resulting from, anyone aCCident,
and not less than $10,000,000 for Injuries to or death of more than
one person resulting from anyone accident, and property damage
limit of not less than $10,000,000; and

iv. Excess umbrellas coverage In the amount of at least $5,000,000 .
Prior to beginning any operations on the premises covered hereby,
Lessee shall furnish Lessor current certificates of Insurance Issued
by Its Insurers In form satisfactory to Lessor under all such poliCies
as evidence that all of such Insurance is carried and providing that
not less then ten (10 ) days prior written notice of material change
In, cancellation of, or refusal to renew, such Insurance, or any part
thereof, will be given to Lessor. All such certificates and written
notices shall be addressed to Lessor at Its address appearing on
page One of this Lease. Such Insurance certlflcates shall be
original Issued by Lessee's Insurance carrier or agent and shall not
be a previously Issued certificate. In the event the Insurance
poliCies maintained by Lessee under Subparagraph II. and Ill. above
provide for combined single limit coverage, the minimum coverage
shall be $1,000,000.

v. Maintenance by Lessee of said Insuran,ce Is In no manner to be
considered a limitation on the Indemnity obligations Imposed on
Lessee herein.

vi. Lessee shall assure that all sub-contractors, Lessee's Invitees and
licenses shall either have Insurance coverage comparable to the
requirements set out above or be covered by Lessee's policies.

vII. No requirement Imposed by Lessor on Lessee In this lease shall be
considered maintenance or reservation of a control or
participation by Lessor In Lessee's operations.

vlll. Lessee agrees to comply with all rules and regulations of the
Environmental Protection Laws of the United States of America and
of the State of Texas, whether or not such laws, rules 01'
regulations apply to Lessee or Lessee's operations, hereunder.

1004
 le. LESSEE SHALL AND BY EXECUTION HEREOF, DOES HEREBY,
INDEMNIFY AND HOLD LESSOR HARMLESS FROM ANY CLAIM OR LIABlUTY,
DAMAMGE, DAMAGES, OR CLAIM FOR DAMAGES OR INJURY, BY REASON 01"
ANY OCCURRENCE OR HAPPENING INCIDENT TO THE CONDUCT OF ANY
OPERATION BY LESSEE, ITS AGENTS, SERVANTS, OR CONTRACTORS,
INVITEES AND LICENSEES ON THE LANDS COVERED BY THIS OIL AND GAS
LEASE, INCLUDING BUT NOT LIMITED TO ANY DAMAMGE OR INJURY WHICH
RESULT IN THE VIOLATION 01" ANY ENVIRONMENTAL PROTECTION LAWS
OR OTHER SlMILAR LAWS RELATED TO CLAIMS, LIABILITIES OR PENALTIES
OF THE FEDERAL OR STATE GOVERNMENTS DUE TO INJURY, DAMAGE OR
CONTAMINATION TO THE VIRONMENT OF THE SURFACE OR SUB-SURFACE
OF LANDS COVERED BY THIS LEASE OR ADJOINING THIS LEASE AND LESSEE
AGREES TO PERFORM ALL REMEDIAL WORK REQUIRED BY ANY SUCH
GOVERNMENTAL ENTITY RELATED THERETO, OR AS OTHERWISE PROVIDED
IN THIS LEASE, WHICH EVER OBLIGATION IS GREATER, AND INCLUDING
BUT NOT LIMITED TO ANY AND ALL INJURY OR DAMAGE TO PERSON OR
PROPERTY FROM ANY CAUSE.
" (I) Lessee shall pay the Lessor for all damage to the land, brUSh, grasses and
crops':on said land, cattle and livestock resulting from any operation or exercise of rights
here~rder, as well as for all damages to fences, water wells and reservoirs and all other
Improvements of the Lessor, now or hereafter situated on the surface of this leasehold,
which, are damaged, Injured or destroyed by operations of Lessee or any employee,
" representative, agent or guest of Lessee.

(m) Lessee shall bury all pipelines below ordinary plow depth; provided that
temporary lines used for drilling or re-worklng operations shall not be required to be
burled If same are removed upon completion of such operations.

(n) Lessee shall use no water from the surface of or below Lessor's lands except
as stated herein. Lessee shall bury any pipelines that cross ranch roads In such a way
to not Impede traffic thereon and not leave such pipeline exposed to damage by heavy
vehicles.

(0) Lessee shall erect, at a distance not to exceed twenty-five (25) feet from
each well on the premIses covered by this lease, a legible sign on which shall be stated
the name of the operator, the lease deSignation, the name of the well, and the Railroad
Commission lease number. Where two or more wells on the same lease whether by
Individual flow line connections direct to the tank or tanks or by use of a multiple
header system, each line between each well and such tank or header shall be legibly
identified at all times, either by a flrmly attached tag or plat or an Identification properly
painted on such line at a distance not to exceed three (3) feet from such tank or header

1005
connection. Said signs, tags, plates or other Identification markers shall be maintained
In a legible condition throughout the term of this lease.

(p) Lessor shall not be required to sell Lessee caliche. Lessee shall use the type
and quality of caliche required by Lessor. No caliche shall be mined from the surface
unless agreement Is reached on source and payment therefore. All caliche used for
operations shall be returned to the original source after a site or a road Is no longer In
use.

(q) At the option of the Lessor, all permanent well and facility locations will be
fenced with King Ranch Wire, or heavy bull wire panels. When fencing a well and
related facilities, an area 150' x 150' will be enclosed to accommodate the entry of
reworking and other equipment to such drill site. Temporary enclosures must· be
erected In a manner acceptable to the surface owner In order to assure their ability to
turn livestock, wildlife and Withstand weather and other forms of stress.

XVIII.
Notwithstanding any provision contained herein or Implied by law, to the
contrary, Lessee agrees that prior to Initiating or commencing any seismiC, drilling or
rewotklng operatlpns, to perform the following:

. A. Seismic Operations:

(1) Secure from Lessor written pernilsslon to conduct seismiC
operations on the land subject to this lease after payment of
surface damages.

(2) Provide Lessor with all copies of seismiC permits,

B, Drilling Operations:

(1) Furnish Lessor a copy of all permits from any regulatory authority for
such drilling operations, accompanied by a plat reflecting the actual location of
such drill site and the name of the Permittee, Lessee agrees that such Permittee
shall not be changed or altered without prior notification to Lessor In writing with
full facts and Information of any sucli alteration.

(2) Furnish Lessor with the name and address of the drilling company who
shall perform such operations and the name, address and telephone number of
the person In charge of such drilling operation.

1006
 (3) Inform Lessor, in writing, of the date of entry on Leased Premises to
commence any operation on Leased Premises after staking a location thereon.

B. Reworking Operations:

(1) Furnish Lessor with copies of any re-worklng permits from any
regulatory authority, together with facts and Information regarding the type and
extent of such reworking operation contemplated, the type of equipment to be'
,used and the name and address of the operator of such eqUipment.

(2) Notify Lessor of the entlY date for such operations.

XIX.
Lessor and Lessee agree to the following miscellaneous provisions:

(a) Lessee shall take the highest degree of care and all proper safeguards to
protect said premises and to prevent theft of oil, gas and other hydrocarbons produced
from:.sald lease. this includes, but Is not limited to, the installation of all necessalY
eqUipment, seals, locks or other appropriate protective devises on or at all access points
at the lease's production, gathering and storage systems where theft of hydrocarbons
can occur. Lessee shall be liable for the loss of any hydrocarbons resulting from thell:
and shall pay the Lessor 'royalties thereon as provided In Article V above, on all oil, gas
or other hydrocarbons lost by reason of theft.

. (b) No well may be drilled or any equipment be placed within Five HUNDRED
feet (500? of any structure, water well, stock pens, or stock tank now existing or
hereafter located on the property without Lessor's written permission.

(c) It Is expressly agreed that no express statement of a covenant contained
herein shall constitute a waiver or abandonment of any covenant Implied In equity or at
law, and Lessor shall have the benefit of all such implied covenants. In the event of a
conflict between an express covenant set out herein and a covenant Implied at law or In
eqUity, the express covenant set out herein shall govern the rights of the parties to the
extent of the express covenant, Insofar as there is a conflict between It and the Implied
covenant, but without such a conflict, both express covenants and Implied covenants
shall govern the rights and relationship of the parties.

(d) This 011 and Gas Lease shall be executed and acknowledged by Lessor and
Lessee, In duplicate originals and when Lessor Is In receipt and possession of a fully
executed and acknowledged duplicate original of this 011 and Gas Lease, Lessor shall
execute a memorandum for recordation purposes of this 011 and Gas Lease on a form
approved by Lessor, delivering same to Lessee for recordation In the Office of the

1007
County Clerk of Webb County, Texas. It Is agreed that neither party herein shall record
their duplicate original of this 011 and Gas Lease unless such recordation becomes
necessary to enforce their rights hereunder. Each duplicate original shall be fully
effective and binding upon the parties, whether or not both duplicate originals are
presented for any such enforcement. The provisions of this 011 and Gas Lease are
binding upon the parties hereto and their respective successors and assigns. The
pronouns of gender shall Incfude the other genders, and either the singular or the plural
shall Include the other. Lessee, by Its acceptance of this lease, agrees and obligates
Itself to all terms and provisions of this lease. Lessee agrees that upon Its receipt of the
notice of this 011 and Gas Lease for recordation purposes from Lessor, that It shall file
same of record and will deliver to Lessor, a copy of such recorded notice showing the
filing and recording Information thereof.

(e) The terms and conditions contained herein shall constitute covenants running
with the land and shall be binding upon, and for the benefit of, Lessor and Lessee and
their respective heirs, legal representatives, successors and assigns.

(f) No change or modification of this 011 and Gas Lease shall be valid or binding
unless the same Is made or specified In writing and signed by the parties, and no
course of dealing between the parties shall be construed to alter the terms hereof•

. (g) If any cfause or provision of this lease Is Illegal, Invalid or unenforceable
under present or future laws, then It Is the Intention of the parties hereto that the
remainder of the lease shall not be affected thereby, and It Is also the Intention of both
parties that, In lieu of each cfause or provision that Is Illegal, Invalid or unenforceable,
there .shall be added as a part of this lease a clause or provision as similar In terms to
the Illegal, Invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable.

(h) Failure of either party to declare any default Immediately upon occurrence
thereof, or delay In taking any action In connection therewith, shall not waive such
default, but said party shall have the right to declare any such default at any time and
take such actfon as might b!;llawful or authorized hereunder, either In law or In eqUity.

(I) In the event there Is any ambiguity In this lease, Lessor and Lessee agree
that the ambiguity shall not be construed In favor of the Lessor and against the Lessee;
nor shall the ambiguity be construed In favor of the Lessee and against the Lessor, but
that the parties Interpreting the contract will be required to use other rules of
construction In order to resolve the ambiguity.

(j) No land demised In this lease may be pooled or unitized with any other land.
If this lease now or hereafter covers separate tracts, no pooling or unitization of royalty
Interests as between any such separate tracts Is Intended, or allowed, or shall be
Implied or result merely from the Incfuslon of such separate tracts within this lease. As

1008
used In this lease, the words "separate tract" mean any tract with differing percentage
royalty ownerships, now or hereafter.

(k) Due to the relative positions of Lessor and Lessee In regard to availability of
data relating to operations on and around the Lease, and In order to preclude
unnecessary and costly claims In court, the parties hereto, agree to a toiling of all
applicable statutes of limitations as same relate to any express or Implied duties,
obligations, covenants or conditions Imposed upon Lessee by virtue of this Lease. As
additional consIderation for the executIon of thIs Lease by Lessor, the parties hereto
and our heirs, representatives, successors and assigns agree that the toiling of all
statutes of limitations which might be applicable to any express or Implied duties,
obligations, covenants or conditions arising out of this Lease shall commence on the
effective date of this lease and such toiling of all applicable statutes shall continue until
and be lifted as hereinafter provided. As to a specific matter raised by Lessor or royalty
owner, this toiling of limitation shall be lifted as to such specified Incldence(s) In
question thirty (30) days after Lessee specifically provides Lessor or other royalty
owners hereunder with suffiCient data to enable the requesting parties to adequately be
apprised of the facts or circumstances relating to such Issue and/or InCidences
regardless of whether such circumstance would constitute a reversion of any rights or
breac;h of any expressed or Implied duty, covenant or condition of this Lease, or would
give .fJse to any other cause of action arising out of the relationship between the parties
to tHis lease (Including royalty owners) and our heirs, successors and assigns. In all
events the tolling of all statutes of limitation shall be lifted thirty (30) days after the full
and complete termination of this Lea~e.

(I) In the event Lessee should file for voluntary Bankruptcy or Insolvency
or for reorganization, or should some third party force Lessee Into
Involuntary Bankruptcy or Insolvency for the benefit of creditors In any
court pursuant to any statute either of the United states or and Statel
or shOUld Lessee enter Into an agreement with creditors for the
appOintment of a receiver or trustee, covering all or a portion of
Lessee's Interest In and to the leased premises, then upon the
occurrence of any of the above events and at the election of Lessor,
Lessee, shall not be relieved of any of Its obligations under the lease,
Including but not limited to any unpaid royalty due Lessor, surface
restoration, and the plugging of abandoned, or non-commercial well or
wells. For purposes of enforcing Lessee's obligations In Bankruptcy
Court, Lessor shall be considered for all purposes a preferred secured
creditor with the highest class permitted by law. LESSEE FURTHER
AGREES TO INDEMNIFY LESSOR FOR ALL LOSS AND DAMAGE
·SUFFERED BY LESSOR BY REASON OF SUCH BANKRUPTCY
INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS
FEES AND COURT COSTS, IF ANY.

1009
 xx.
As further consideration for this lease, Lessor sh\lll have the right, but not the
obligation, to participate In any oil or gas well drilled on this property. Lessee shall
provide Lessor or his designee with all Information, Including welilogs and Authority For
Expenditures (AFEs) regarding the well drilled within the later of 5 business days of
completion of all tests and operations conducted by Lessee after Its decision to
complete a well as a producer. Lessor shall notify Lessee In writing of Its election to
participate in the well within 5 business days of receipt of the forgoing Information, and
Lessor shall tender Its corresponding share of working Interest costs within 15 business
days after tender of the election. Information shall be provided to Lessor or his
designee on a well by well basis. As to each well, Lessor has the right to partlclpate In
an amount up to Ten percent (10%) of the working Interest In that well. The
relationship between the parties In regard to this working Interest shall be governed by
the Joint Operating Agreement attached hereto as exhIbIt "b". All working Interests
shall be dealt with In an Identical manner regarding rights, obligations and penalties
arising from any working Interest In the wells located on these lands that Lessor'elected
to participate In; provided, however, that the working Interest described In this
paragraph shall never be charged with any cost or expense attributable to monies paid
to orlor the benefit of Lessor.

:'" EXECUTED In duplicate originals on this the .1..1..1(~~
'
day 0 2008 It being
agreed that this Lease will not be effective until executed by both p rtl s.

~:~n?lger

LESSOR

Escondido Resources II, l.Le

By: ' !4-d-:-
LESSEE

1010
STATE OFTEXAS §

COUNTY OF WEBB §

This Instrument was acknpwledged before me on the 2£ day of Ju"c
2008 by James K. Jones, Jr., Manager of Justapor Ranch Company, LC. as the act and
deed of such LImited LIability Company.

NO ARYPUB C, STATE OF TEXAS
•

STAle OF TEXAS §

COUNTY OF HARRIS §

This Instrument was acknowledged before me on the 1# day of ,>, the
oaIcuJated poohlon (If the fouUlwest C(JIlI(I((Jflhh (netl
'i1t:BNcn wlth the (I~()u1a!~d postliou of lh~ pruentt)' ocwpled WC61etty right-of·way Una oro,s, W~wa.y No. 83
and (Olltbw~~rty llne hettof ,dong tho foUowwg lhru caur~es:
'l'EmNCU North 0"08'35- West 494.13lt«t to 8 JH)lnt (or. an ~tertot comer of lhl5 tl'acll
'l'lIENClt Ncrrth B4'S0132~ }?art or
10,00 Feet to II. poInt for an Interior eomet ibis tract;
'l'HENCE North (\;';'08'35· Wed. 2690.08 ~t to lila calculated }n!Cllcotioll poln! of thls line! wIth (he aoutbeasterty
1100 otSUrfc), 1394, Abstrllct 1999, nosebfo aawfa Ong[nal Oranteo end lhb northwesterly lllle of tho nforemeDtloncd
SUcvcy 1932, fot the northwest GOmer ofl.hla ttael:
'l'IllUiC~ North 69t Zl'M-nasl F¢et aoron l1le flght-or~way (JtV,S. HIghway No. 83 wIth the tOllthwt Une of
SUrvey 1394 ond northwes, Ilno of Survoy 1932, tho .orthwert II.,
h".. f, p... lng at 51.691tect tit. co.IC, of U.S.
IUgllw,yN•• 83, ond 1l4.ISl'«lln,u I•• r"'''''llI''pOsjCUl tIt.wI righl-of,way Ilnootu.B.lH&hway /la. 6l for
the ostenldble4outhwe$1 COrMr ofTnwt 6$ of La Moca ~ BIlbdlvbtollss Sho~n tho Plat of lA Moos Ranch &.st
orHfghwA)' 81lhQt b recorded in Votwno Jl. Psg(l S ofIlIa Plat Records of Webb ty, 'l'exu, wIth th.(& rel1~c.omor
bolng a point (In lMgen.{ in tb(lllOrthweawty Uno Qf!h1s klltt;
. "
\
THENCE HOlth 69'21'14~ Bast 1981.26 Feet OOtltlnulog g~neral'y
$long S-d',(ixJ~tlug fotl~e on Ute oc.cUpfed
sotrtheas!erly llneof&ald "!'reDt 65 (leLa Moos Rant-b Stibdlvkloll',l.be wutheasterlylIne 6f Sutvey J394, a northweBtatly
UnaoCSvrvey 1932,lind anortbwestorlylluo berwf, to 1\ (enQOoomera( tlw UUed ~rtfon orlhD southeasi coI'nIJrof'5l!d
Survey 1394r----
anager

LESSOR

1019
 Escondido Resources II, LLC

BY:_-,,-:7?_:~_~,-:.--.c.==.
J. David Wrather, Vice-President

LESSEE
STATE OFTEXAS §

COUNTY OF WEBB §

This Instrument was acknowledged before me on the .21!!'day of JUf\.e.
2008 by James K. Jones, Jr., Manager of Justapor Ranch Company, L.C. as the act and
deed of such Limited Liability Company.

NO ARY PUBLI , STATE OF TEXAS

STATE OFTEXAS §

COUNTY OF HARRIS §

This Instrument was acknowledged before me on the ;)Jd day of ~~e .
2008 by J. David Wrather, Vice-President of Escondido Resources II, LLC, as the act
and deed of such Limited Liability Company.

NOTARY PUBLIC, STATE OF TEXAS

1020
 Filed
9/5/2014 3:46:44 PM
Esther Degoll do
Distriel lerk
Webb Di riel
2013-cv7-001396 D1

CAUSE NO. 2013-CV7-001396-Dl

JUSTAPOR RANCH COMPANY, L.C., § IN THE DISTRICT COURT OF
Plaintiff, §
§
V. § WEBB COUNTY, TEXAS
§
§
ESCONDIDO RESOURCES II, LLC, §
Dejendant. § 49th JUDICIAL DISTRICT

AFFIDAVIT OF DAVID WRATHER
THE STATE OF TEXAS §
§
COUNTY OF HARRIS §

1. My name is David Wrather. I am employed with Escondido Resources II, LLC
("Escondido") in the position of Senior Vice President. My position includes responsibility for
land operations, including involvement in the negotiation of oil and gas leases on behalf of
Escondido. I participated in the lease negotiations between Escondido and Justapor Ranch
Company, L.C. ("Justapor") for the lease of oil and gas interests on an 803-acre ranch owned by
Justapor in Webb County, Texas (the "Justapor Ranch"). I negotiated the lease with James &.
Jones ("Jones") who I understood to be the owner of Justapor. As a result, I have personal
knowledge of the facts set fOlih in this affidavit and they are true and conect.

2. Jones contacted me in May, 2008, to inquire about Escondido's interest in leasing
the oil and gas minerals on the Justapor Ranch. Jones informed me that he was a lawyer in
Webb County, Texas. Escondido did not have separate counsel representing it in the negotiation
or execution of the lease between it and Justapor.

3. On June 4, 2008, Jones e-mailed me a lease agreement form for the Justapor
Ranch. On June 6, 2008, I e-mailed Jones comments to the lease form and an example of a
proposed royalty provision which Escondido had rccently used in another lease. A hue and
correct copy of the e-mail chain and fOlm are attached to Escondido's response to Jones' Motion
for Summary Judgment (the "Response") at Exhibit 1.

4. During our negotiations, I told Jones that Escondido wanted to base its royalty
payment obligations upon the pricing (enns Escondido had negotiated with Enterprise for a gas
sales agreement (the "Enterprise Gas Sales Agreement") as a minimum price that Escondido
would pay for purposes of royalty payments. On June 13, 2008, I e-mailed Jones the pricing
terms we had negotiated with Enterprisc for thc paymcnt of gas. A true and correct copy of this
e-mail is attached to the Response as Exhibit J. Jones infOlmed me that Justapor would agree to
the payment of royalty based upon the Enterprise pricing terms with Escondido, but not with any
subsequent assignee of Escondido. Jones informed me that Justapor wanted an amendment to
the proposed lease that would incorporate special pricing terms related to Escondido's price
arrangement with Enterprise. Jones provided me with a draft of the proposed amendment. On

1

1325
Ex. S
June 13, 2008, I e-mailed Jones connnents to the proposed amendment wherein I referenced in
c()mlection with the pricing provision, "as per Enterprise offer". A hue and correct copy of this e-
mail and the attached draft are attached to the Response as Exhibit K. Based upon my
discussions and negotiations with Jones, the parties agreed that an amendment was to be drafted
to provide a special royalty pricing provision, based upon the Enterprise price, that would be
available only to Escondido, and not any subsequent assignee.

5. Escondido and Justapor entered into the oil and gas lease dated June 24, 2008,
covering the lease of minerals on the Justapor Ranch (the "Lease Agreement"). On the same
date, Escondido and Justapor also entered into an amendment to the Lease Agreement titled
"Amendment to Oil and Gas Lease" ("Amendment No. I "). Based upon the negotiations and
agreement reached with Jones, Escondido understood and believed Amendment No. I, and its
special pricing provision, to be a replacement provision for the pricing provisions contained in
Alticle III(b) of the Lease Agreement. The patties entered into Amendment No. I so that
Escondido's royalty obligations under the Lease Agreement would correlate to the pricing terms
of the Enterprise Gas Sales Agreement. At the time the Lease Agreement and Amendment No. I
were executed, Enterprise was the only market readily available to transpOit and purchase gas
produced from the Justapor Ranch.

6. In order to sell gas produced fi'om the Justapor Ranch to Enterprise, Escondido
needed to constlUct a meter site on the Justapor Ranch and build a pipeline from the Justapor
Ranch across other adjacent propetties to a cOlll1ection point on the Enterprise System.
Escondido acquired the right of way necessary to constlUct the pipeline. As part of this project,
Escondido and Justapor executed a Surface Site Agreement which included a pipeline right of
way and meter station surface site on the Justapor Ranch, a copy of which is attached to the
Response as Exhibit L. It was discussed with Jones that the Smface Site Agreement and pipeline
would be conveyed to Enterprise when the facilities were conshucted. Escondido did constlUct
the pipeline and ultimately assigned the Surface Site Agreement ,md pipeline to Enterprise with
the consent of Justapor, a copy of which is attached to the Response as Exhibit M.

7. By 201 I, capacity constraints on the Enterprise pipeline system caused Entelprise
to limit the volume of gas which was purchased fi'om Escondido, including gas produced fi'om
the Justapor Ranch. During this period of time, Escondido made sales of gas produced from the
Justapor Ranch to an altemative market, Kinder Morgan Texas Pipeline, LLC ("Kinder
Morgan"). Gas was delivered to Kinder Morgan via a gathering system installed by a new
midstream company that had entered the area, Meritage Midstream Services, LLC. Meritage
acquired a meter site for their pipeline fi'om Justapor and acquired right of way to take
Escondido's gas, including Justapor's gas, to Kinder Morgan.

8. In October 2011, Enterprise informed Escondido that it had capacity available on
its system, and intended to re-initiate gas purchases from the Justapor Ranch. The price which
would be realized from the sale of gas to Enterprise was greater than the price available from
Kinder Morgan. Escondido made plans and was prepared to sell gas from the Justapor Ranch to
Enterprise. However, by letter dated October 19, 20ll, Jones communicated to Entelprise that
the Surface Site Agreement was terminated. Entelprise informed me that it could not purchase
gas from the Justapor Ranch as a result of the termination notice sent to it by Jones and Jones

2

1326
informed me that he now owned the Enterprise meter and equipment located on the meter site.
Jones informed me that Escondido could not sell gas from the Justapor Ranch to Enterprise as a
result of the termination of the Surface Site Agreement. Because of the termination of the
Enterprise Surface Site Agreement, the right of way and meter station on the Justapor Ranch
were not available to Enterprise to accept gas from the Justapor Ranch. Jones informed me that
Justapor would negotiate with Entelprise for a new surface site agreement containing additional
terms.

9. During the same period of time, Escondido was attempting to access additional
markets for gas produced from the Justapor Ranch. Escondido negotiated processing contracts
with ConocoPhillips Company (dated September 1,2011) and Copano Processing, L.P. (dated
October 25,2011), and expected these additional markets to be available by the end of 2011 or
early 2012. Escondido also believed, based upon Jones' statements regarding negotiations with
Enterprise, that a new surface site agreement would soon be executed again providing Escondido
with access to the Enterprise market. Each of these alternative markets was expected to provide
a higher price for the Justapor Ranch gas than that available from Kinder Morgan, due in part to
processing capability. As a result of the timing ofthe termination of the Surface Site Agreement,
and the expected availability of markets fi'om Copano and ConocoPhillips in the near future,
Escondido decided to shut-in the wells on the Justapor Ranch until those higher-priced markets
became available. I informed Jones that Escondido wanted to shut-in the wells on the Justapor
Ranch nntil higher-price markets became available. The only shOlt-term market available to
Escondido at that point in time, due to the termination of the Surface Site Agreement with
Enterprise, was sales to Kinder Morgan based upon a daily spot price. At that point in time, the
daily spot price was lower than the price which would have been paid by Entelprise if the
Surface Site Agreement had not been tClminated, and lower than the price Escondido expected to
receive in the future for sales to Copano and ConocoPhillips. Jones directed me to continue sales
and not shut-in the wells. I explained to him that Escondido wanted to sell gas to Entelprise and
believed that Jones and Enterprise were working on resolving their issues and that Escondido
would rather shut-in the wells rather than sell the gas at the lower gas daily spot price, without
processing. Jones stated that he wanted Escondido to proceed with sales, even though processing
was not available.

10. Also in 2011, a disagreement arose between Escondido and Justapor over the
calculation of a compensatory royalty payment relating to a well drilled on propelty adjacent to
the Justapor Ranch. There were also issues outstanding between the patties related to drilling
cOllllnitments under the Lease Agreement; a working interest owned by another Jones entity,
JAK Passive Minerals, L.C.; and mineral interests owned by third parties on a portion of acreage
within the Justapor Ranch referred to by the parties as the "Vacancy Tract". Each of these issues
was addressed in a letter agreement entered into between Escondido and Justapor dated August
9,2011 (the "Letter Agreement").

II. Since execution of the Letter Agreement, Escondido has supplied Jones with
executed deeds conveying all mineral interests owned by Escondido at that time, or subsequently
acquired, for the Vacancy Tract. Escondido is not cUlTently the owner of any mineral interests in
the Vacancy Tract or the Justapor Ranch which has not been previously conveyed to Justapor or
another entity owned or controlled by Jones as a result of deeds signed and delivered by

3

1327
Escondido to Jones. It was never discussed, contemplated, 01' agreed that Escondido would
convey any leasehold interest which it currently holds on the Justapor Ranch in connection with
the Letter Agreement.

12. Also in May, 2008, Escondido was attempting to secure leases of minerals on
other propelties in the Webb County area. In particular, Escondido was negotiating to obtain a
mineral lease from William S. Hatte (the "Harte Lease") and one other propelty. These other
leasing negotiations were underway in the same period of time during which Escondido was also
engaged in negotiations with Jones for a mineral lease on the Justapor Ranch.

13. In late May, 2008, Escondido sent leasing proposals for two negotiations it was
engaged in, one of which was the Harte Lease. In early June, 2008, and prior to the execution of
the Justapor Lease, Jones informed me that he could represent Escondido in cOllllection with its
leasing efforts in Webb County. I informed Jones of Escondido's interest in acquiring the Harte
Lease and, at least, one other. Jones informed me thaI he knew the parties involved with both
lease negotiations and that he could represent Escondido in negotiating and securing the Harte
lease. On June 10,2008, I e-mailed Jones with the terms of the lease offer Escondido had made
in connection with one of the negotiations. A hue and COHect copy of the e-mail transmitting the
Benavides Lease offer and the offer itself are attached to Escondido's Response to the Lawyer
Jones Motion for Summary Judgment (the "Lawyer Jones Response") as Exhibit Y (filed under
seal). Negotiations on that Lease did not progress beyond the preliminary stage. However,
Escondido continued negotiations in connection with the Harte Lease.

14. Between June 10,2008, and June 16,2008, Jones and I discussed the terms under
which Jones would undertake the representation of Escondido in connection with the Harte
Lease. Jones informed me that he would represent Escondido in connection with its effOlts to
negotiate and acquire the Harte Lease in exchange for the payment to Jones of a fee in the form
of an overriding royalty interest on the Hatte Lease if the negotiations lead to the execution of a
lease. Jones informed me that in exchange for Escondido's agreement to pay an overriding
royalty interest, he would represent Escondido in connection with the Harte Lease. On June 16,
2008, I spoke with others at Escondido regarding the payment of an overriding royalty interest to
Jones as requested for his legal services. After these discussions, I e-mailed Jones on June 16,
2008, confirming Escondido's agreement to engage Jones in connection with obtaining and
negotiating the Hatte Lease and Escondido's agreement to pay Jones an overriding royalty
interest. Exhibit Z to the Lawyer Jones Response is a true and conect copy of an e-mail
exchange between me and Jones dated June 16,2008 through June 17,2008. The first e-mail in
this exchange on June 16, 2008, is the e-mail setting out the tenns of Escondido's engagement of
Jones. On June 17, 2008, Jones e-mailed me a request to send him a copy of Escondido's
proposal for the Harte Lease as referenced in Exhibit Z, which I did. Jones' e-mail also requested
that I call him. I telephoned Jones on the 17th at which time we discussed his representation of
Escondido in connection with the Harte Lease and the terms of the overriding royalty interest
which Escondido had agreed to pay Jones in connection with that representation. Jones stated he
would represent Escondido in connection with the Hade Lease. At no time did Jones infonll me
that he had not agreed to undertake any representation of Escondido as of that time. As a result
of my conversations with Jones, I understood and believed him to be engaged at that time as
Escondido's counsel in cOlmection with the Harte Lease and other potential leasing effOlts. Jones

4

1328
confIrmed this understanding during out' conversation of June 17, 2008, when the Harte Lease
proposal was discussed, Jones never advised me during this time period that he had not agreed
to represent Escondido, There was no subsequent telephone conversation during the months of
July 01' August, 2008, during which Jones told me he had decided to represent Escondido, I am
aware of no other writing between myself or others at Escondido, on the one hand, and Joncs, on
the other hand, constituting an engagement agreement for Jones other than the e-mail of June 16,
2008, marked as Exhibit Z to the Lawyer Jones Response,

15, Jones did proceed to represcnt Escondido as its attorncy in cOlUlection with the
Harte Lease, Exhibit AA to the Lawyer Jones Response is a copy of a July 23, 2008 e-mail I
sent Jones containing information related to Harte's legal representative, On June 24, 2008, I
sent Mr, Harte an email (Exhibit FF to the Lawyer Jones Response) informing him that Jones
was representing Escondido and to expect a call from him, Exhibit BB to the Lawyer Jones
Response is an e-mail sent to me by Jones relaying to me information regarding his
conversations wlth Harte's attorney and the status of negotiations, Exhibit CC to the Lawyer
Jones Response is an e-mail from Jones to me dated January 7, 2009, setting fOlih his opinions
regarding the terms of the proposed Harte Lease, Exhibits DD and EE to the Lawyer Jones
Response are e-mails from Jones to me dated Jammry 7, 2009, wlth redlined comments to the
proposed Harte Lease,

16, At no time did Jones advise me that Escondido should engage separate counsel in
connection with the negotiation and execution of the Lease Agreement. At no time did Jones
request 01' obtain Escondido's written consent to his representation of Escondido at the same time
he was negotiating with Escondido the Lease Agreement for the Justapor Ranch,

17, While we were negotiating the Lease Agreement for the Justapor Ranch, Jones
told me that he had drafted a tough agreement in case Escondido ever assigned its rights under
the Lease Agreement to another party, but that he would work out with Escondido any issues
Wllich might arise, Based upon this conversation, and the fact that Jones was acting as
Escondido's attol'lley, I assumed that any disagreements which might arise between Escondido
and Justapor would be resolved through a negotiation process, During lease negotiations, Jones
and I never discussed his interpretation of pricing provision III(b)(iv) of the Lease Agreement.
We also did not discuss the termination provision contained in Article XIV, I did request one
change to the annual certification requirement contained in Article III(g); however, Jones and I
never discussed his understanding or interpretation of Article III(g) insofar as it relates to the
obligation to make allllualrcconciliation payments, Prior to this lawsuit, Jones never informed
me that it was his position 01' Justapor's position that the Lease Agreement would terminate if
there were ever an underpayment of royalties which was not correctly and fully reconciled and
paid by March I of the succeeding year, Jones never informed me that it was his position or
Justapor's position that the Lease Agreement would terminate if there was an underpayment of
royalties, Jones never informed me of his 01' Justapor's interpretations of the pricing provisions
in Article III of the Lease Agreement as asselied in this lawsuit, If, prior to the execution of the
Lease Agreement, Jones had informed me of the interpretation and construction being advanced
by him and Justapor in this case, I would not have agreed to the Lease Agreement without further
clarification 01' modification, In particular, Escondido would not have agreed to the pricing
provision contained in Article III(b) of the Lease Agreement if it were not modified by

5

1329
Amendment No. 1 as Escondido understood based on its conversations with Jones. Escondido
would not have agreed to a lease which provided a remedy for underpayment of royalty as
argued by Justapor in this case. Escondido would not have agreed to a lease which provided for
termination for a failure to reconcile an alleged royalty underpayment as argued by Justapor in
this case. None of these arguments 01' interpretations was explained to me by Jones prior to
execution of the Justapor Lease.

FURTHER AFFIANT SAYETH NOT.

David Wrather

SUBSCRIBED and SWORN to before me this the ~;\I day of Sf PTLMlSy;R ,2014.

CTRAVIS WAlNE Notary Public, State of Texas
My Comml&slon Expires
January 25.2016

6

1330
 Filed
9/5/2014 3:46:44 PM
Esther Degollado
District Clerk
Webb District
2013-cv7 -001396-D1

NO.2013-CV7-001396-DI

JUSTAPOR RANCH COMPANY, L.C., § IN THE DISTRICT COURT OF
Plaintiff, §
§
V. § WEBB COUNTY, TEXAS
§
§
ESCONDIDO RESOURCES II, LLC, §
Defendant. § 49th JUDICIAL DISTRICT

AFFIDAVIT OF JOHN S. LOWE

THE STATE OF MAINE §
§
COUNTY OF HANCOCK §

BEFORE ME THE UNDERSIGNED NOTARY PUBLIC, on this day personally
appeared Jolm S. Lowe, who after being h me duly sworn, stated under oath:

1. My name is John S. Lowe. I am the George W. Hutchison ProfeSl;or of Energy Law at
Southern Methodist University's Dedman School of Law. I have more than 35 years' experience
teaching courses on issues related to property law, oil and gas law, and oil and gas contracts. I
am also an attorney and member of the bars of Texas, Oklahoma, and Ohio. I am Past President
of the Rocky Mountain Mineral Law Foundation, and Past Chair of the Section of
Environmental, Encrgy, and Resources Law of the American Bar Association. I have published
numerous atiicles dealing with oil and gas contracts. I have also written, or co-written with
others, books on oil and gas leases and contracts. I often present lectures and papers on issues
related to oil and gas leases and contract~. Additional information regarding my experience and
qualifications is set out in my resume, a true and correct copy of which is attached hereto as
Exhibit I and incorporated herein by reference. I am familiar with and have an understanding of
the customary terms used in oil and gas lease agreements, and industry custom, practicc, and
usage in applying those terms. I have specialized knowledge, skill, education, and experience
regarding oil and gas lease provisions and issues related to the custom, usage, and practice in the
oil and gas industry related to provisiops in oil and gas leases, including but not limited to
royalty-calculation provisions, royalty-payment provisions, and audit provisions. I have
reviewcd the oil and gas lease dated June 24, 2008 (the "Lease") that is the subject of this lawsuit
along with amendments thereto including the Amendment to Oil and Gas Lease dated June 24,
2008 ("Amendment No. I "). I have also reviewed Plaintiffs First Amended Petition and exhibits
thereto; deposition testimony of Jimmy K. Jones, David Wrather, William Deupree, Kurt von
Plonski, and Charlie E. Graham; Plaintiffs Designation of Expert Witnesses; Escondido's
Designations of Expert Witnesses; Plaintiffs Motion for Summary Judgment; and, deposition
exhibits 2A, 2B, 3, 11,42,48,57,59,61,62,64,69, and 74. I have personal knowledge of the
facts set forth herein, and am competent to testifY thereto. The facts stated in this affidavit are
true atld correct.

1
Ex. F 1136
 2. Article III(b)(iv) of the Lease is not a customary or usual royalty provision. This
provision is unclear and ambiguous. A tyPical lessee in the oil and gas industry would not know
how to apply this provision to the calculation of royalty payments. Unlike the other royalty
provisions contained in the Lease, there is no defined term or definition for the meaning of
royalty provision (iv). Justapor, in the deposition of James K. Jones, contends that royalty-
provision (iv) contains an error in that the word "were" should be "where." Even if the word
"were" was changed to "where," royalty-provision (iv) would remain unclear and ambiguous. As
drafted, pricing-provision (iv) could be interpreted in alternative ways by a typical industry
lessee. The uncertainlY and lack of clarity with regard to the meaning of royalty provision (iv) is
increased by Amendment No. 1. In this instance, it appears Amendment No. I was executed
simultaneous to the Lease in order to afford the lessee, Escondido Resources II, L.L.C.
("Escondido"), with a special pricing provision available only to it, and not to subsequent
assignees. Escondido appears to have operated with the understanding that the provisions of
paragraph 2 of Amendment No. 1 amending Article III of the Lease provided an alternative
royalty methodology that supplanted each of the four royalty provisions contained in Article
III(b) of the Lease. It is reasonable and consistent with industry custom and practice for
Escondido to pay royalties in a manner consistent with this interpretation and wlderstanding of
the effect of Amendment No.1 on the Lease royalty-payment provisions.

3. Industry custom and practice would apply the termination clause contained in Article
XIV of the Lease only to non-payment of royalty. The termination clause would not apply to
Imderpayment or miscalculation of royalty. The industry differentiates royalty non-payment
from royalty underpayment. It is unusual, but not unheard of, to have lease provisions calling for
temlination if a royalty is not paid. But it is unheard of to have a termination provision in the
event of an underpayment. The industry does not consider non-payment of royalty to be the same
as an underpayment of royalty. An unqerpayment is an underpayment, not a non-payment; in
other words, if there is an underpayment, a subsequent failure to correct the llilderpayment does
not change the nature of the underpayment to a non-payment of royalty. Because the termination
provision contained in Article XIV does not expressly apply to the underpayment of royalties, it
also does not apply to a failure to correct an underpayment of royalty through a review or
reconciliation process. A11icle XIV does not condition the continuation of the Lease on the
correction of any or all royalty underpayments by March 1 of the succeeding calendar year.
Industry custom and practice does not consider royalty underpayments to be the same as a failure
to pay royalty. Likewise, industry custom and practice would not consider a failure to reconcile
a royalty underpayment by March I of the succeeding year to be a non-payment of royalty. It is
not usual or customary to have a lease-termination clause for underpayment of royalties or for
the failure to correct or reconcile an underpayment.

4. Article XIV of the Lease states it does not apply in the event of a title dispute or title
defect. That "carve out" is included because it is industry custom and practice to hold payment
of royalties "in suspense" when there is a title dispute or title defect. The carve out for a title
dispute or title defect protects the lessee from termination for non-payment of royalty if there is a
suspension due to a title issue. The inclusion of the carve-out language for title disputes and
defects further evidences that the intent of the parties was that the termination provision
contained in Article XIV would apply to instances of non-payment, rather than instances of
underpayment. This is consistent with industry custom and practice.

2
1137
 5. Article III(g) of the Lease calls for the lessee to review prices and production volumes
used in its calculation of royalty payments against the price and production volumes required to
be paid under the terms of the lease by January 31 of each year, and to issue make up payments
for the difference on or before March 1 of each year. From an industry custom and practice
point of view, Escondido appears to have complied with this provision through its periodic
monitoring of prices and volumes throughout the course of the year, and through its periodic
reconciliation payments made to the lessor.

6. The reconciliation provision contained in paragraph IIl(g) deals with underpayments of
royalties. Article JII(g) does not contain any term or condition which would terminate the Lease
in the event lessee fails to correct any underpayment of royalties by the date set forth therein.
This is consistent with industry custom and usage. It is not be customary nor usual to apply a
remedy of termination to a failure to correct royalty underpayments. Industry custom and usage
would not consider the provisions of Article XIV dealing with non-payment of royalties to be
triggered by any non-compliance with the provisions of Atiicle IIl(g) dealing with reconciliation
payments.

7. Industry custom and usage would not interpret a provision relating to the "true up" or
reconciliation of royalty underpayments such as is contained in paragraph III(g) to constitute a
lease-termination event. In the lessorllessee context, there are frequently misunderstandings,
issues, disagreements, and disputes relating to the prices and volumes used to make royalty
payments, and applying a termination provision to underpayment of royalties in these sorts of
circumstances is not customary or usual. A lessee would be placed in an untenable position if it
was at risk of losing its lease in the event of disagreement about the methodology, pricing, or
volumes to be used in royalty calculations, or, if it made a mistake. The lessor would effectively
be able to blackmail a lessee, or conduct audits looking for any type of uncorrected
underpayment in order to declare a lease terminated. The industry does not conduct business in
this manner.

8. Applying industry custom and Practice, it appears Escondido acted reasonably in its
calculation and payment of royalties. The alleged underpayments at issue in this case appear to
have been made using accepted industry practices for the making of royalty payments and appear
to have been done in compliance with at least one of the pricing prongs made the subject of the
royalty-payment provisions and Amendment No. 1. Escondido's conduct in making the royalty
payments in this fashion would not be considered to have been done in "bad faith" from an
industry point of view and standard, but instead appear to have been made in good faith.

9. The parties included specific termination provisions in the Lease at Aliicles X and XIV.
Article X allows for tetmination in the event lessee is not conducting "operations" in compliance
with the terms of the Lease and fails to correct such non-compliance following notice by lessor.
Likewise, as set forth above, the provisions of Article XIV relate to termination for the non-
payment of royalties, not the underpayment of royalties. The inclusion of these two termination
provisions in the Lease coupled with the fact that the Lease does not contain a provision that
calls for termination in the event of an underpayment of royalties or a failure to correct an
underpayment of royalties suggests that the intent of the parties was not to include an
underpayment of royalties or a failure to correct a royalty underpayment as a terminable event.
This is consistent with industry practice.

3
1138
 10. According to the deposition testimony and reports of other experts, Escondido has
invested over $30 million making improvement associated with the Lease. Applying a
termination clause to the underpayment of royalties as presented by the circumstances of this
case would, under industry standards, impose a harsh, unusual, disadvantageous, costly, unfair,
and unreasonable consequence upon Escondido.

II. Forfeiture is a harsh remedy. It is the usual and customary practice in the industry to
specify, with clarity, the terms tmder which a lease may terminate. In the absence of an express
and specific provision, industry practice would not consider an act or omission of the lessee to be
a termination event. In this case, the plain language of Article XIV addresses temlination for the
nonpayment of a royalty. Article XIV does not expressly or specifically provide for termination
due to underpayment of a royalty or a failure to reconcile an underpayment. Similarly, Article
XIV does not provide for termination of the lease agreement when there is it dispute between the
lessee and the lessor regarding the calculation of royalty payments.

12. The oil and gas industry recognizes the "doctrine of obstmction," which includes an
implied covenant on the part of the lessor not to interfere with the lessee's performance of the
lease agreement. In this case, testimony indicates that the lessor's termination of the Enterprise
surface-site lease prevented Escondido fwm selling to the high-priced Enterprise market. If the
lessor's termination was not done in accordance with the surface-site lease, then the termination
was not proper and may have prevented Escondido from achieving a higher price for pwduction.
Such conduct would be inconsistent with and contrary to the implied covenant on the part of the
lessor arising under the "doctrine of obstmction."

FURTHER AFFIANT SA YETH NOT.

~.c-)
.9,.,.,J;UBSCRlBED AND SWORN TO BEFORE ME, the undersigned authority, on this
thty<.:_~_':t day of August, 2014, to certify which witness my hand and seal of office.

MARIANNE HUNT
NoIary Pubic. Malle
UyConrr;ss;oo Expires Augusl 16. 2020

4
1139
 John S. Lowe
George W. Hutchison Pl'ofessor of Energy Law
Scnior Associate Dean fOI' Academic Affairs
Southcl'll Mcthodist Univel'sity
Dedman School of Law
3315 Daniel Ave.
Dallas, TX 75275·0116
214·768·2595
ilowc@smu.cdu

PROFESSIONAL EXPERIENCE

'George W. Hutchison Professor of Energy Law at SOllthe1'll Methodist University, since
1989. Senior Associate Dean for Academic Affairs, Dedman Law School, since 2009.
-Honorary Lecturer and Principal Research Fellow, Centre for Energy, Petroleum and
Mineral Law, the University of Dundee, Scotland, 2000·2014.
·Senior Fellow, Faculty of Law, University of Melbourne, Victoria, Australia, since 2007.
-Visiting Professor, Faculty of Law, University of Sydney, NSW, Australia, since 2008.
'Visiting Professor, School of Energy and Resources, University College London in
Adelaide, SA, Australia, 2010·2012.
-Visiting Professor, Universidad de ESAN, Lima, Peru, 2008.
'Fulbright Senior Specialist and Visiting Borden Ladner Gel'Vais LLP Chair of Energy Law
and Policy, University of Albetta, Edmonton, Ala., Canada, 2008 .
• Visiting Professor, Universidade Agostinho Neto, Luanda, Angola, 2009.
- Visiting Professor, Chulalongkorn University Faculty of Law, Bangkok, Thailand, 2010,
2012.
-International Legal Advisor and Chair, International Legal Standards Advisory Group,
COlllmercial Law Development Program, U.S. Department of Conmlerce, 2006·2009.
·FromI978·1989 Professor of Law and Associate Director of the National Energy Law &
Policy Institute, the University of Tulsa.
-Frolll 1975·1978 Assistant and Associate Professor, the University of Toledo.
-Visiting Professor at Texas (1983), Denver [Distinguished Professor of Natural Resources
Law] (1986), and New Mexico [Visiting Judge Leon Kal'elitz Chair] (1996).
'Private practice 1970·1975.
-Government practice (Govcl'Jlment of Malawi) 1966·1969.

1 1140
EDUCATIONAL BACKGROUND
·B.A. Denison 1963. (Highest Honors, Phi Beta Kappa, Omicron Delta Kappa, General
Motors Scholar);
·LL.B. Harvard 1966. (Harvard Entering Scholar, Maxwell Scholar).

PROFESSIONAL LICENSURE AND CERTIFICATIONS
'Member ofthe bars of Texas, Oklahoma, alld Ohio.
'Admitted to practice before the U.S. Supreme Comt, the U.S. Tax COtllt, the U.S. Fifth
Circuit, and the U.s. District Courts for the Southern and NOIthern Districts of Ohio
·Member of the commercial arbitration panels of the American Arbitration Association, the
CPR Institute for Dispute Resolution and the International Chamber of Commerce.

COURSES TAUGHT
'Property Law, at SMU, Tulsa, and Toledo, as needed from 1975 to the present;
'Oil and Gas Law, at SMU [since 1987J, Tulsa [1978-87], Texas [1983], Denver [1986], and
New Mexico [1996];
'Oil and Gas Contracts, at 8MU [since 1987], Dundee [since 2000], Melbourne [since 2007],
Sydney [since 2008], University College London in Adelaide [2010-2012].

PUBLICATIONS: BOOKS AND BOOK SUPPLEMENTS
·OIL AND GAS LA WIN ANUTSHELL, West Publishing Company, 61h edition 2014) (1 sl through
5"1 editions published in 1983, 1988, 1995,2003,2008);
,CASES AND MATIlRIALS ON OIL AND GAS LA IV (West Publishing Company, 61h edition 2012)
(with Professors Owen Anderson, Ernest Smith, David Pierce, and Christopher Kulandel').
(1 SI through 51h editions published in 1986, 1993, 1998,2003,2008);
'OIL AND GAS FORMS MANUAL 5"1 edition (West Publishing Com~any 2009) (with Professors
Owen Anderson, Ernest Smith, and David Pierce). (l" through 5 editions published in
1987,1993, 1998,2004);
'INTIlRNATIONALPETROLEUM TRANSACTIONS (Rocky Mtn. Min. Law Fnd. 3rd edition 2010)
(with Professors Ernest Smith, Jo1m Dzicnkowski, Owen Anderson, Bruce Kramer and
Jacqueline Weaver). (lSI edition published in 1993);
'HEMINGWAY OIL AND GAS LAW AND TAXATION (West Publishing Company 4'h edition
2004) (with Professors Owen Anderson, John Dzienkowski, David Pierce, Robel1 Peroni and
El'llest Smith);
·1996-2013 Cumulative Pocket Parts, KUNTZ LAW OF OIL AND GAS (Maintained and updated
annually for LexisfNexis since 1996 with Professors Anderson, Smith and Pierce.);

2

1141
 ·1989-2007 Cumulative Pocket Patts, SUMMERS OIL AND GAS LAW (Maintained and updated
annually for West from 1989 to 2007);
•Yol. 28, WBST'S LEGAL FORMS (3,d Ed. 1997) (with Professor Bradford Stone) (Maintained
and updated annually from 1997 to 2007);
'Yolumes 6, 7 & 7A, WEST'S TEXAS FORMS (3,d ed. 1997) (Maintained and updated annually
from 1997 to 2008).

SELECTED PUBLICATIONS: MAJOR LAW JOURNAL ARTICLES
·Recent Significant Developments Affecting Farmout Agreements, 50 Hl Oil & Gas Inst 3-1
(Matthew Bendel' 1999). (Peer reviewed);
'Royalty Calculation in Texas, Ch. 3 in Oil and Gas Law for a New CentUl'Y: Precedent as
Prologue (Appendix to the Proceedings of the 50 lh Anniversary Celebration of the
Southwestern Legal Foundation, Matthew Bender, 1999) (Peer reviewed);
·The Lessee's Right to Free Use ofProduccd Substances: New Wine in Old Bottles, 37 Nat.
Res. J. 729 (1997) (not peer reviewed);
'Defining the Royalty Obligation, 49 SMU LJ. 223 (1996). (Not peer reviewed) [Selected
as the Outstanding Law Review Alticle of 1996 by the Texas Bar FOtmdation. Reprinted at
33 Pub. Land & Res. Dig. 257 (1996)];
·The Easement of the Mineral Estate for Smface Use, THE NATURAL RESOURCES LAW
MANUAL 239-25 1 (ABA 1995) (Peer reviewed);
'The Easement of the Mineral Estate for Surface Use: An Analysis ofIts Rationale, Status
and Prospects, 39th Rocky Mtn. Min. 1. Inst. Ch. 4 (1993) (Peer reviewed);
·Principles of Energy Policy, 32 Washbul'll 1. J. I (1992) (Not Peer reviewed);
'Developments in NonregulatOll Oil and Gas Law: Al'e We Moving Toward a Kinder and
Gentler Law of Contracts?, 42n Oil & Gas Inst. 1-1 (Matthew Bender, 1991) (Peer
reviewed);
-The Meaning of "Payout" in Oil and Gas Farmout Agreements, 10th Eastel'll Min. 1. Inst.,
13-1 (Matthew Bender, 1989) (Peer reviewed);
·A New Generation of Gas Contracts, YIII Corp. Counsel Rev. I (1989) (Peer reviewed);
'Developments in Non-Regulatory Oil and Gas Law, 39th Oil & Gas Inst. Ch. 1 (Matthew
Bender, 1988) (Peer reviewed);
'Current Lease and Royalty Problems in the Gas Industry, 23 Tulsa 1.J. 547 (1988) (Not peel'
reviewed);
•Analyzing Oil and Gas Farmout Agreements, 41 Southwestern 1. J. 759 (1987); reprinted at
25 Pub. Land & Res. Dig. 5 (1988). (Not peer reviewed). [Selected as the Outstanding Law
Review Atticle of 1988 by the Texas Bar FOlmdation];

3

1142
 -What Substances are "Minerals"? 30th Rocky Mtn. Min. L. Ins!. 2-1 (1985) (peel'
reviewed);
-Severance Taxes as an Issue of Energy Sectionalism, 5 Energy L.J. 357 (1984) (Peel'
reviewed);
-Developments in Non-Regulatory Oil and Gas Law: The Issues of the Eighties, 35th Oil &
Gas Ins!. I (Matthew Bender 1984) (Peer reviewed);
-Shut-In Royalty Payments, 5th Easte1'll Min. L. Inst. Ch. 18 (1984) (Peer reviewed);
-Eastern Oil and Gas Operations: Do Recent Developments Suggest New Answers to Old
Problems?, 4th East. Min. L. Inst. Ch. 20 (1983) (Peel' reviewed);
-Developments in Non-Regulatory Oil and Gas Law, 32nd Oil and Gas Ins!. 117 (Matthew
Bendel' 1981) (Peel' reviewed);
-Beyond Section 858A - A Proposed System of Ground Water Liability and Management for
Eastern States, 8 Ecology L.Q. 131 (1979) (with Lon C. Reudisili and Bruce Graham) (Not
peel' reviewed);
-Representing the Landowner in Oil and Gas Leasing Transactions, 31 Okla. L. Rev.
257 (1978). Abstracted inl6 Pub. Land & Res. L. Dig. 188 (1979) (Not pee1'1'eviewed);
-Ohio Oil and Gas Conservation Law - The First Ten Years (1965-1975), 37 Ohio State L.1.
31 (1976) (with J. R. Emens) (Not pee1'1'eviewed).

SELECTED PRESENTATIONS, LECTURES, AND PAPERS
-March 2004, "History ofthe Energy Law Journal," Energy Bar Association, Washington,
D.C.;
-May 2004, "Inte1'llational Gas Trade," Oman Rule of Law Forum, Washington, D.C.;
-September 2004, "Royalty and Implied Covenants," National Association of Royalty
Owners' national convention, Denver, CO;
-September 2004 and 2005, "Inte1'llational Environmental Issues in Petroleum Development,"
Association of International Petrolellm Negotiators, Houston, TX;
-February 2006, "Inte1'llational Minerals Development and Trade," Kyrgyzstan Rule of Law
Forum, Dallas, TX;
-April 2006, "U.S. Energy Policy," Oklahoma City Mineral Bar Assoc., Oklahoma City, OK,
and SMU Law Reunion Weekend, Dallas, TX;
-May 2006, US Oil Policy in the Middle East. Institute of Foreign Relations, Ministry
of Foreign Affairs, Riyadh, Saudi Arabia;
-October 2007, "Damages in International Arbitration," American University, Washington;
-December 2007, "The International Arbitration Process," Qatar University, Doha, Qatar
[two presentations];

4

1143
 -December 2007, "Teaching in American Law Schools," faculty presentation, Qatar
University, Doha, Qatar;
-March 2008, "Operator Liability, Removal and Succession," Rocky Mountain Mineral Law
Fnd. Special Inst. on Operating Agreements, Denver, CO;
-November 2008, "US Energy Policy," to the Institute of United States Policy Stlldies,
Edmunton, Albelia;
-March 2009, "Iraq's Draft Technical Services Contract," to officers of the Iraq Ministry of
Oil, Dead Sea, Jordan;
-May 2009, "International Farmout Agreements" to students in the LLM program at
Universidade Agostinho Neto, Luanda, Angola;
-May 2009, "Intel'l1ational Operating Agreements" to students in the LLM program at
Universidade Agostinho Neto, Luanda, Angola;
-May 2009, "Legal Drafting of International Contracts" to Association of International
Petroleum Negotiators Regional Meeting, Luanda, Angola;
-October 2009, "The Future of Oil and Gas Law," Symposium at Washburn University Law
School, Topeka, KS;
·October 2009, "Principles of U.S. Energy Policy," Cornell Institute of Public Affairs, Ithaca,
NY;
'February 2010, "Inte1'llational Unitization Issues," seminar for Iraqi Ministry of Oil officials,
Dallas, TX;
-March 2010, "Operating Agreement Problems," University of Texas CLE, Houston, TX;
-May 2010, Selected Issues in International Operating Agreements, University College
London in Adelaide, South Allstralia.
-June 2010, Short Comse in International Petroleum Contracts, University of Dunclee, UK.

-September 2010, International Petroleum Contracts and Issues, Chulalongkorn University
Faculty of Law, Bangkok, Thailand.

'September 2010, Implications ofthe Macando Oil Spill, Petroleum Institute of Thailand
Executive Session, Bangkok, Thailand.

·October 20 I0, Short Comse in Oil and Gas Law, Rocky Mountain Mineral Law Fnd.,
Westminster, CO.

·March 2011, OperatorlNon-Operator Issues, University of Texas Fundamentals of Oil and
Gas Law, Houston, TX.

'May 2011, Selected Issues in International Operating Agreements, University
College London in Adelaide, South Australia.
5

1144
'May 2011, Intensive Masters' Course in Global Oil and Gas Contracts, University of
Sydney

'May 2011, Legal Issues in the Development of Petroleum Resources, Australia National
Tax Office, Perth, WA, Australia.

·June 2011, Intensive Masters Course in Global Oil and Gas Contracts, University of Sydney
LLM program, British Institute for International and Comparative Law, London, UK.

·June 2011, Short Course in International Petroleum Contracts, University of Dundee, UK.

'November 2011, Contracts Used in International Petroleum Transactions, Agencia Nacional
do Petroleo, Rio de Janeiro, Brazil.

-March 2012, Operator/Non-Operator Issues, at the University of Texas' program on Fundamentals of
Oil and Gas Law, Houston, TX.

'March 2012, Energy's Future, 2012 Energy Symposium, Thurgood Marshall Law School, Houston, TX,

-April and May 2012, Intensive Masters' Course in Global Oil and Gas Contracts, University of Sydney
LLM program, NSW, Australia.

-May 2012, Selected Issues in International Operating Agreements, at University College London's
Natural Resources LLM program in Adelaide, South Australia.

-May 2012, Intensive Masters/JD Course in International Petroleum Contracts, University of
Melbourne, Vic., Australia.

'May 2012, Legal Issues in the Development of Petroleum Resources, Australia National Tax Office,
Melbourne, Vic., Australia.

-May 2012, International Petroleum Contracts, University of Dundee, Scot/and, UK.

-June 2012, Cross-Border Unitization, for senior Iraqi government officials and officials of the US
Departments of State, Interior, and Commerce, in Washington, D.C.

'September 2012, International Farlllout and Operating Agreements, Chulalongkorn
University Faculty of Law, Bangkok, Thailand .

• November 2012, Panelist, "Emerging Issues in US Energy Law," Appellate Judges
Education Institute, in New Orleans.

-February 2013, Moderator and Panelist, Energy and the Arab Spring, ABA International

6

1145
 Law Section meeting, Dallas, TX.

'March 2013, "Issues in Operating Agreements," at the University of Texas' program on Fundamentals
of Oil and Gas Law, Houston, TX.

'May 2013, International Petroleum Contracts, University of Dundee, Scotland, UK.

'Jlllle 2013, "International Petroleum Contracts Overview," for lawyers from the Afghan Ministry of
Mines and Petroleum and members of the Afghanistan parliament, Doha, Qatar.

SELECTED APPOINTMENTS AND ELECTED POSITIONS
'President, the Rocky Mountain Mineral Law Foundation, 2003-2004 (previously held other
offices);
'Chair of the Section of Enviromuent, Energy, and Resources Law of the American Bar
Association, 1992-1993 (previously held other offices);
·Member, ABA Coordinating Group on Energy Law, 1989-1992,1993-2001;
•Vice Chair and member of the Executive Conmlittee of the Energy Law Institute of the
Center for American and International Law, 1999-2004;
'Member of the Council of the Oil, Gas, and Mineral Law Section of the Texas State Bar,
1994-1997;
'Member of the Council of the Energy Law Section (1994-1997) and Member of the Council
ofthe International Law Section (1994-1999), the Dallas Bar Association; -
'Member of the Advisory Board, SMU-in-Legacy Dispute Resolution Program, 2001-2004;
'Editor, the Oil and Gas Reporter (LexislNexis) 1987-present.

AWARDS/SPECIAL RECOGNITIONIHONORS
'Recipient of the 2013 Clyde Mattz Award for teaching excellence from the Rocky Mountain
Mineral Law Foundation;
'Co-recipient ofthe John Rogers Award for distinguished service to the oil and gas industry
(Sponsored by the Center for American and International Law);
'Recipient, Dr. Don C. Smart Prize for Teaching Excellence (sponsored by SMU Law
School);
'Recipient, Dr. Don C. Smatt Prize for Directed Research (sponsored by SMU Law School);
·Twice awarded the Texas Bar Foundation Outstanding Law Journal Article Award.

PROIIESSIONAL/COMMUNITY SERVICE
·Oil and Gas International Legal Advisor and Chair, International Legal Standards Advisory
7

1146
Group, Commercial Law Development Program, United States Depal1ment of Commerce,
2006-2009 (working with the Iraqi Government, the U.S. Embassy in Baghdad, and the State
Department on the Iraq Oil Law and related statutes and contracts);
'Chair, SMU Law School Appointments Committee, 1997-2006 (Member 2007 - present);
'COllStlitant, Commercial Law Development Program, United States Department of
Commerce, 2009 to present (working with lawyers from Iraq, Afghanistan, Yemen, India,
and Poland).

8

1147
 Filed
9/5/2014 3:46:44 PM
Esther Degoll do
Distriel CI rk
Webb Dis riel
2013-cv7-001396 D1

NO.2013-CV7-00I396-Dl

JUSTAPOR RANCH COMPANY, L.C., § IN THE DISTRICT COURT OF
Plaintiff, §
§
V. § WEBB COUNTY, TEXAS
§
§
ESCONDIDO 'RESOURCES II, LLC, §
Defendant. § 49th JUDICIAL DISTRICT

AFFIDAVIT OF WILLIAM B. ABINGTON

THE STATE OF TEXAS §
§
COUNTY OF HARRIS §

BEFORE ME THE UNDERSIGNED NOTARY PUBLIC, on this day personally
appeared William B. Abington, who after being by me duly sworn, stated under oath:

1. My name is William B. Abington.' I am a Certified Public Accountant, Certified in
Financial Forensics, a Certified Fraud Examiner, and an honors graduate of Texas State
University. I am a member of the American Institute of Celtified Public Accountants,
Association of Certified Fraud Examiners, and American Bar Association Section of Natural
Resources, Energy and Environmental Law. I am the Managing Director for Alvarez & Marsal's
Global Forensic and Dispute Selvices Group. I have over 25 years experience providing
accounting and complex financial analysis, forensic investigations and advisOlY selvices. I lead
Alvarez & Marsal's dispute and forensic services in the energy sector. Additional information
regarding my qualifications is set out in my resume, a tme and correct copy of which is included
in Exhibit I attached hereto. I have personal knowledge of the facts set fOlth hcrein, and alll
competent to testilY thereto.
2. Attached as Exhibit 1 to my affidavit is a true and correct copy of my report prepared in
this case.

3. I have calculated the royalties Escondido paid Justapor in cOllllection with the Lease
Agreement. Escondido paid Justapol' $5,749,323 in royalty payments for production under the
pal1ies' Lease Agreement from June, 2009, through April, 2014.

4. According to the expert l'epOli prepared by Chal'les E. Graham, Ill, Escondido allegedly
"underpaid" Justapol' royalties totaling $80,958. This alleged "underpayment" represents 1.4%
of total royalties paid to Justapol' dUl'ing the period of time set forth in the preceding paragraph.
Mr. Graham alleges royalties in the amount of $3,851 were underpaid for the months of October,
20 II, November, 2011, and Januaty, 2012. This amount represents 0.00067 of the total royalty
paid.

1
Ex. G 1148
 5. I reviewed the amount of money expended by Escondido on capital improvements made
under the pat1ies' Lease Agreement. Escondido incurred $33,100,287 of costs on capital
improvements to the propel1y which is the subject of the pat1ies' Lease Agreement.

6. Article III and Article XIV ofthe Lease Agreement both address royalties; however, they
address two different accounting aspects of royalty payment. Al1iclc III of the parties' Lease
Agreement addresses the accounting of how to calculate royalty and when to make adjustments
to the royalty calculation. Article XIV of the Lease Agreement addresses the accounting of
when royalty payments are to be paid to the lessor. At1icle lU(g) describes when to make
adjustments, 01' "hue-ups" to the royalty calculation. Article III does not call for the Lease
Agreement to terminate if adjustments are not identified by lessee and processed by March I of
the succeeding year. It is common in the oil and gas industry for companies to periodically
review royalty calculations and to make hue-up payments. It is also common for producers to
receive adjustments from purchasers that impact the volume or the price upon which the royalty
payment was based. These adjllstments may be received numerous months following the initial
royalty payment and require the company to make a tme up payment to the royalty owner.

7. At-ticle XIV describes the timing of when the royalty payment is due, for both existing
and first production, and describes the consequences for not making the royalty payment.
Specifically, Article XIV states "Royalties payable to Lessor in the malmer hereinabove provided
for are due and payable to Lessor within a period of sixty (60) days following each month's
production of oil 01' gas produced and sold from the premises". Unlike At1icle III(g), which
describes the manner and timing to account for potential adjustments to royalty, At1icle XIV
describes when the initial payment on monthly production should be accounted for to the royalty
owner and the penalty for a delinquent payment. In other words, it addresses lIOn-payment of the
royalty in a timely manner. The reference to a title dispute 01' defect demonstrates this point. If a
title dispute 01' a title defect exists, royalty payments are typically not paid and are instead
accounted for as "suspense" and held accordingly until the title matter can be resolved. In such
circumstances, Article XIV provides an exception for non-payment of royalty on a timely basis.
The lease termination clause contained in Article XIV is tied to the monthly production and
requirement to pay royalty within 60 days following each month's production. Underpayments
and adjustments to underpayments are not addressed in Al1icle XIV.

8. I have reviewed the royalty payment information related to the pat1ies' Lease Agreement.
Production under the Lease Agreement began during June, 2009. Escondido has routinely made
royalty payments to Justapor for production since that time. Additionally, Escondido has made
true-up 01' reconciliation payments to Justapor over the life of the Lease Agreement. Escondido
made 15 true-up or reconciliation payments to Justapor fl'om September, 2009, through June,
2014, totaling $441,596.

9. Escondido's interpretation of the methodology for royalty payment calculation is
reasonable. David Wrather of Escondido testified that he believed Alnendment No. 1 to the
Lease Agreement replaced the entire pricing provision contained in Article III of the Lease
Agreement so that the pricing provision would mirror the Enterprise contract and limit
Escondido's royalty exposure to what it was receiving fi'om Enterprise. Lease agreements often
contain language providing that royalties will be paid based on the lessee's proceeds. Oil and gas
companies generally strive to align their cash outflows (in this case royalty payments), to their

2 1149
 cash inflow (in this case gas sales). Gas accounting involves many complexities, and companies
generally desire to pay royalties bused on the same pricc which the company sold the gas to a
third party.

10. The royalty pricing provisions in the, tease Agreement are not entirely clear. Article
III(b) of the Lease Agreement, as it reads without Amendment No.1, sets f011h a royalty pricing
methodology calling for gas royalties to paid at the highest of:

(i) Current Market Value

(ii) Current Houston Ship Channel Price

(iii) Current Proceeds Realized by Lessee, 01'

(iv) The highest sales price of any gas were gas produced from the property
could be present when sold to a third pat1y.

Oil and gas leases commonly include pricing provisions based on current market value, the
HOllston Ship Channel Price and/or cllrrent proceeds. Even so, the Lease Agreement goes on to
provide definitions of each of three terms. An accountant can detemline the value associated
with each of these provisions. However, the fourth provision appears unclear, but the Lease
Agreement does not define this provision.

11. Amendment No. 1 to the Lease Agreement sets forth pricing amendments to Article III of
the Lease Agreement. Amendment No. 1 includes a paragraph that addresses the Houston Ship
Channel Price. At the end of this pat'agraph, a provision states, in patt:

"provided, however, Lessee shall have the right to enter into gas sales contracts
that will determine the price upon which gas royalty is calculated if such contracts
provide no less than a price redetermination every six months and provide the
following minimum terms:"

(hereinafter referred to as the "Pricing Provision").

Although the Pricing Provision is inclUded in the satUe section that describes the Houston Ship
Channel Price, Mr. Wrather testified that he believed the Pricing Provision replaced the royalty
pricing terms :110m the Lease Agreement. Interpreting the Pricing Provision to only relate to the
Houstoll Ship Channel Price, as Justapor contends, appears to bhu' the meaning of the pricing
points contained in Alticle Ill(b) of the Lease Agreement. Accountants are routinely required to
read and apply oil and gas royalty pricing terms in leases. The language in Amendment No. I
that describes the circumstances of the Pricing Provision is describing a current proceeds
circumstance. Therefore, if the Pricing Provision in Amendment No. I amends the entire royalty
pricing terms set forth in the Lease Agreement, as testified to by MI'. Wrather, royalties would be
calculated based upon the CUI'rcnt proceeds so long as the sales price is greater than the minimum
price set forth in the Pricing Provision. This interpretation allows each pricing point to
concurrently exist in the Lease Agreement, as atllended. However, if the Pricing Provision
applies only 10 the Houston Ship Chanllel Price, then the Pricing Provision is stating that the
current proceeds can be paid instead of the Houston Ship Chmmel Price. Further, if such currcnt

3 1150
proceeds are received from a third party at an arms-length basis, then those proceeds represent a
market value transaction. Thus, if the Pricing Provision only applies to the Houston Ship
Channel Price, then the Houston Ship Channel Price would be the same as currcnt proceeds and
would be the same as market value price. This intelpretation appears to blur the distinction of
the pricing points and appears to create two different definitions of current proceeds.

12. The affidavit of Charles E. Graham, III and the copy of his report attached thereto, both
included as Exhibit F to Plaintiff's Motion for Summary Judgment, sets out alleged trespass
damages in the amount of $10,413,114 from March 2, 2012, to Feb11lary 28, 2014, or
alternatively, $4,825,866 from March 2,2013, to February 28, 2014. According to the Graham
report, these numbers are calculated based on "net proceeds" but subtract only royalties and taxes
paid from gross proceeds. The amounts set fOlih by MI'. Graham in his affidavit and report do
not account for other operating costs incurred by Escondido. An acc\ll'ate calculation of the
value of the net proceeds to Escondido would include a reduction for the costs associated with
production. Taking into account the operating costs incuned, the actual value of the net
proceeds realized by Escondido was $6,671,268 from March, 2012, to February, 2014, and
$2,820,095 from March, 2013, through February, 2014. A monthly breakdown of these amounts
is set forth in my report attached hereto as Exhibit I.
13. The Graham report alleges royalties were underpaid in the amount of $77,107 for the
time period of February, 2012, through January, 2013. It appears the Graham repoli does not
consider two factors relating to the calculation of this amount. First, the Graham report does not
account for the time period from February 1,2012, tlU'ough February 21, 2012, when Escondido
was selling gas only to Kindel' Morgan. Instead, the Gmham report calculates an alleged
underpayment related to Escondido's use of a weighted average price for the entire month,
thereby applying the higher Conoco sales price to the time period during which Escondido was
not selling to Conoco. Second, it appears that the Graham report does not consider the difference
between the entrained NGL mix that exists in the Justapor gas stream and the NGL composition
of the co-mingled gas stream delivered to Conoeo for processing. I have calculated adjustments
to the alleged underpayment for the two above factors, which result in a decrease of more than
$55,000 to the alleged underpayment amount of $77, 107. A similar adjustment may be in order
for the entmined NGL mix of sales to Copano.

14. The facts stated in this affidavit are true and correct.
FURTHER AFFIANT SA YETH NOT.

William BAbington

SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authorHy, on this
the :') ~ day of September, 2014, to certify which witness my hand and seal of office.

4
1151
 Filed
9/5/2014 3:46:44 PM
Esther Degollado
District Clerk
Webb District
2013-cv7 -001396-D1

(

Escondido Resources II, llC
526 Kingwood Drive, /1353
Kingwood, Texas 77339
(lSl) 359-6780 oHice
(281) 361·6780 fax
blll@es(:ondldo·resources,com

August 9, 2011

Mr. James I<. Jones, Jr.
Justapor Ranch Company, L. C.
JAI< Passive Minerals, L.C.
5601 San Dario Ave., Ste #5
Laredo, Texas 78041

Re: Oil and Gas Lease dated June 24, 2008, executed by Justapor Ranch
Company, L.C., as Lessor, to Escondido Resources Ii, L.C., as Lessee
covering a tract of 803 acres of land located in Webb County, Texas, as to
depths from 9,000 feet below the surface t6 all deeper depths (the "Deep
Rights Lease"), a Memorandum of which dated January 5, 2009, Is
recorded in Votume 2701, page 269, Official Public Records of Webb
County, Texas, and which lease has been amended by instruments dated
effective June 24, 2008 by instrument dated October 21, 2008; and

011 and Gas Lease dated June 24, 2008, executed by Justapor Ranch
Company, l.C., as Lessor, to Escondido Resources II, L.e., as Lessee
covering the same tract of 803 acres of land located in Webb County,
Texas, as the Deep Rights Lease, but limited the depths from the surface
to 9,000 feet below the surface (the "Shallow Lease"), a Memorandum of
which is recorded in Votume 2609, page 16, Official Publio Records of
Webb County, Texas, and which lease has been amended by instruments
dated effective June 24, 2008, and October 21,2008.

Dear Mr. Jones:

Reference Is here made to each of the Deep Rights Lease and the Shallow
Lease referenced In the caption above (collectively, the "Leases"). By Instruments of
even date herewith, each denominated the Third Amendment of Oil and Gas Lease (the
"Third Amendment"), each of Justapor Ranch Company, L.C. (the "Ranch Company"),
and Escondido Resources Ii, L.C. ("Escondido"), has agreed to certain amendments to
each of the two Leases.

The purpose of this letter Is to confirm the agreement between each of the Ranch ~

Com~"Y '"' "ooMid. ~. "~::FI:E::'~~ _., 00_ ~ \) ~~~~~~~~~~?
c)! ''-''<-<-<'hl ~(),,?~,o-o
N-I:r'"-~\ 6. "':"""''d-v,<;
c;:tJJ-:::00q:;:l(b..
~~~ ~'1VVV"V-"-
. _ ._ .•L \. ~
~v~
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~J
()

\..vJ-ln adrn: the foregoing, this letter sets forth the terms of an agreement
~\J between JAK Passive Minerals, L.C. ("JAK"), and the Ranch Company (collectively,
'\ "Jones Entity') and Escondido pertaining to the Shallow Lease.

Under the terms and provisions of Paragraph XX of each of the Leases, Lessor
has the right to partiCipate for up to a ten percent (10%) working interest In any well
drilled on the leased premises. Jones Entity has agreed, and contemporaneously with
the execution and delivery of this letter and the Third Amendments referred to herein, Is t1}//
assigning, or causing to be assigned, to Escondido all of its working Interest righi, title
and Interest, In and to any rights It owns In the Leases, effective as of 8eeembeH34;Nov.",,,.r I
2010. The form of this assignment is attached hereto as Annex A, and the
consideration for this assignment is the Inclusion in the Third Amendment of each of the
. Leases of an Increase In the royalty provided for In the Leases from 25% to 30%, i.e. an
increase of 5% of 100% in and to production of oil, gas and related hydrocarbons from
the Leases.

If the foregoing reflects your understanding of our meetings and discussions, and
you are In agreement, please execute and'return: (I) a copy of this letter agreement, (II)
each of the two Third Amendments to 011 and Gas Lease and (iii) an assignment In the
form attached as Annex A In exchange for your execution and delivery of these
documents, Escondido will simultaneously execute and deliver to YOLi (i) a counterpart
of this agreement and (II) counterparts of each of the two Third Amendments to Oil and~, ~
Gas Lease. An apprQpriate acc9.~ntlng shall follow ~ execun9n 9f documents.v-\~ ""'-'
'V.> .. ~.~ v.... "-4.0D,oOO~'-~ liYJV
This agreement may be executed In mulliple counterpart caples, each of which
shall be deemed an original of but one and the same instrument

Very truly yours,

ESCONDIDO RESOURCES II, LLC

;::/
{:?A>?-· ..·. .
By: ,,-
J. David Wrather, Vice President (signatures continue on following page]
'Y\~
\J
CONFIDENTIAL

ESC004108
1310
Mr. James K. Jones, Jr, i .
Justapor Ranch Company, l.C,
JAK Passive Minerals, l.C.
August 9, 2011
Page 4

~
AGREED TO and ACCEPTED this L day of August 2011,

JUSTAPOR RANCH COMPANY, L.C,

CONFIDENTIAL

ESC004109
1311
 Filed
7/23/20149:37:20 AM
Esther Degollado
District Clerk
Webb District
2013-cv7 -001396-D1

Escondido Resources II, lLC
526 Kingwood Drive, 11353
Kingwood, Texas 77339
(281) 359-6780 office
(281) 361-6780 fax
bill@escondldo-resources.com

August 9, 2011

Mr. James K. Jones, Jr.
Justapor Ranch Company, L.C.
JAK Passive Minerals, L.C_
5601 San Daria Ave., Ste #5
Laredo, Texas 78041

Re: Oil and Gas Lease dated June 24, 2008, executed by Justapor Ranch
Company, L.C., as Lessor, to Escondido Resources II, L.e., as Lessee
covering a tract of 803 acres of land located in Webb County, Texas, as to
depths from 9,000 feet below the surface to all deeper depths (the "Deep
Rights Lease"), a Memorandum of which dated January p, 2009, is
recorded in Volume 2701, page 269, Official Public Records of Webb
County, Texas, and which lease has been amended by instruments dated
effective June 24, 2008 by instrument dated October 21, 2008; and

Oil and Gas Lease dated June 24, 2008, executed by Justapor Ranch
Company, L.C., as Lessor, to Escondido Resources II, L.e., as Lessee
covering the same tract of 803 acres of land located in Webb County,
Texas, as the Deep Rights Lease, but limited the depths from the surface
to 9,000 feet below the surface (the qShaliow Lease"), a Memorandum of
which is recorded in Volume 2609, page 16, Official Public Records of
Webb County, Texas, and which lease has been amended by instruments
dated effective June 24, 2008, and October 21, 2008.

Dear Mr. Jones:

Reference is here made to each of the Deep Rights Lease and the Shallow
Lease referenced in the caption above (collectively, the "Leases"). By instruments of
even date herewith, each denominated the Third Amendment of Oil and Gas Lease (the
"Third Amendment"), each of Justapor Ranch Company, L.C. (the "Ranch Company"),
and Escondido Resources II, L.C. ("Escondido"), has agreed to certain amendments to
each of the two Leases.

The purpose of this letter is to confirm the agreement between each of the Ranch ~
Company and Escondido with respect to certain matters covered by the Third ~
r-112~/O -/3
~
f!!
EXHIBIT
,;g
!§
5 ICD- t
~, /~
a;

(fi

!.. k. Vl!h PlIt.b.W~-4 j JJ 2174
- 445
Mr. James K. Jones, Jr.
Justapor Ranch Company, L.C.
JAK Passive Minerals, L.C.
August 9, 2011
Page 2

Amendments to the Leases, anything set forth in each of the amendments to the
contrary.

Paragraph XIII of each of the two Leases has been amended to provide as
follows:

After the expiration of the primary term of this lease, Lessor and lessee agree
that the commencement of drilling operations on three (3) horizontal wells to any
formation on the lands covered by this lease or covered by the [Deep Rights or Shallow
Rights] Lease, in any twelve month period beginning July 1 shall satisfy this continuous
drilling provision and this lease the [Deep Rights or Shallow Rights] lease shall remain in
full force and effect until the end of a twelve month period beginning July 1 in which
Lessee does not commence drilling operations on three (3) horizontal wells. At the end
of the twelve month period during which lessee has not commenced drilling operations
on three (3) horizontal wells, this lease and all rights granted hereunder shall
automatically terminate as to all acreage covered by this lease, SAVE AND EXCEPT all
acreage allocated to each producing oil or gas well, on a well by well basis (whether
vertical or horizontal), and designated as provided above. lessee shall be obligated to
release all acreage and depths not so allocated to a producing oil or gas well as herein
provided for.

As between the Ranch Company and Escondido, only, and personal only to Escondido
(and not its successors and assigns), each reference in the foregOing paragraph, as set
forth in each of the Third Amendments, shall be deemed to read "two (2) wells" in place
of three. To the extent that Escondido drills and completes more than two (2) wells per
year, it shall receive credit for those additional wells against future years drilling
commitments.

The drilling of the following wells, in addition to wells already drilled on the 803
acre tract covered by the Leases as of the date of this agreement, will develop fully the
lands covered by the Shallow Lease and the Deep Rights Lease as to the formations
indicated:

Formation No. of Wells

Eagle Ford shale 5
Olmos 5
Escondido :3
Total: 13

JJ 2175
446
 Mr. James K Jones, Jr.
Justapor Ranch Company, L.C.
JAK Passive Minerals, L.C.
August 9, 2011
Page 3

Escondido commits to drill two (2) wells in the Escondido, (1) well in the Olmos, and one
(1) Eagle Ford Shale well. If Escondido fails to drill these commitment wells prior to
breakup or release of either lease, it shall pay three hundred fifty thousand dollars
($350,000) per well not drilled and completed !o Ranc~Company. ffa( r/tf 1.)"': ' I ~ .J t-v- .~
~"v~ ...,yr.... -c:.t."t-~ C..al-.. "'-1 .."t-~ ."''' ~tr.-t.''1 ifJl- Yev
'''''t'~Y-(.lo(' I.....e.
v
(,. ...........
v Qkl;:\)C.~/
(A.ct~.r~..(0"'N.."':"
.......

-t"--- r~,.(!:.e.Y'tL-tc-e~
Y"""'-ev"'15
. . . ',:
8 0 . . . . . . '.
ac~..) ~ ... e,..,~U "'-J Pi,/( o-tk......V"~&cl\-r\o'-"'\ ,,,t--eV""<:..Jr.} tv-'L. .'.
G( cflA;..r~ \1.,. ~',~ /ej\. . ..l a.J..,..~~ yo",\(" "\p~.r<::;""<1 C\,I-...A c~\.,j~ ....+, ".
In addition to the foregoing, this le1tter sets forth the terms of an agreement .
between JAK Passive Minerals, L.C. ("JAK"), and the Ranch Company (collectively,
"Jones Entity") and Escondido pertaining to the Shallow Lease.

Under the terms and provisions of Paragraph XX of each of the Leases, Lessor
has the right to participate for up to a ten percent (10%) working interest in any well
drilled on the leased premises. Jones Entity has agreed, and contemporaneously with ~
the execution and delivery of this letter and the Third Amendments referred to herein, is if'
assigning, or causing to be assigned, to Escondido all of its working interest right. title ~. 1
and interest, in and to any rights it owns in the Leases, effective as of Qeeember 31, NoY '. . .....
2010. The form of this assignment is attached hereto as Annex A. and the1S' ... ~. ' .
consideration for this aSSignment is the inclusion in the Third Amendment of each of the . .'.
Leases of an increase in the royalty provided for in the Leases from 25% to 30%, i.e. an' . '. .
increase of 5% of 100% in and to production of oil, gas and related hydrocarbons from
the Leases.

If the foregoing reflects your understanding of our meetings and discussions, and
you are in agreement, please execute and return: (i) a copy of this letter agreement, (ii)
each of the two Third Amendments to Oil and Gas Lease and (iii) an assignment in the
form attached as Annex A. In exchange for your execution and delivery of these
documents, Escondido will simultaneously execute and deliver to you (i) a counterpart

~
of this agreement and (ii) counterparts of each of the two Third Amendments to Oil and

.
. . ' Gas Lease. An appropriate accounting shall follow the execution of documentsLN '" ~ we....
\.... o.,v....... c.. ~-t...~ et. -t".o b~ .It SD u./OD