David W. Cromwell v. Anadarko E&P Onshore, LLC

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

DAVID W. CROMWELL, § No. 08-22-00129-CV

Appellant, § Appeal from the

v. § 143rd Judicial District Court

ANADARKO E & P ONSHORE, LLC, § of Loving County, Texas

Appellee. § (TC# 18-10-923)

§

OPINION ON MOTION FOR REHEARING

We deny Appellant’s motion for rehearing. The opinion issued on August 4, 2023 is

withdrawn, and the following opinion is substituted in its place.

In this dispute over the validity of oil and gas leases and related partnership claims, David

Cromwell appeals the trial court’s judgment granting Anadarko E & P Onshore LLC’s traditional

and no-evidence motions for summary judgment and denying his cross-motion for partial summary

judgment. We affirm.

Factual and Procedural Background

In 2009, Cromwell executed two oil and gas leases in Loving County with Carmen Ferrer

and the Tantalo trust. Ferrer and the Tantalo trust each owned small fractional interests in the
acreage, so Cromwell acquired a minority working interest. 1 The Ferrer lease conveyed a mineral

lease in “[a]ll of sections 22, 23, 24, 25, 26, 27 Block 75 Public School Land Survey . . . for the

purpose of exploring by geological, geophysical and all other methods, and of drilling, producing

and operating wells for the recovery of oil, gas and other hydrocarbons . . . that may be produced

from any well on the leased premises[.]” It included a habendum clause defining the lease’s

duration as a primary term of three years (ending on February 2, 2012) and a secondary term stating

the lease would continue “as long hereafter as oil, gas or other minerals are produced from said

land[.]” The lease was “paid up,” meaning Cromwell was not required to commence drilling

operations or pay delay rentals during the primary term.

The Tantalo lease similarly conveyed a mineral lease “for the sole and only purpose of

exploring, drilling, operating power stations, and construction of roads and structures thereon to

produce, save, care for, treat and transport oil, gas and liquid hydrocarbons from . . . [a]ll of

Sections 22, 23, 24, 25, and 26, Block 75, Public School Land Survey[.]” Its habendum clause had

a primary term of five years (ending on March 13, 2014) and a secondary term stating the lease

would continue “as long thereafter as oil, gas, liquid hydrocarbons or their constituent products

. . . is produced in commercial paying quantities from the lands leased hereby.” The Tantalo lease

was also paid up.

Anadarko owned substantial working interests in the same land. Before Cromwell obtained

his two leases, Anadarko had executed joint operating agreements among other working interest

owners (not including Cromwell) who collectively agreed to “explore and develop” the leases

contributed by the parties to the agreements. Anadarko was named as operator under all joint

1
Together, the two leases gave Cromwell a net working interest of .00410156 in the land.

2
operating agreements and thus the designated party to do the actual drilling for the other parties.

After Cromwell acquired the Ferrer and Tantalo leases, he submitted his leases to Anadarko and

asked for a joint operating agreement to participate in the wells Anadarko had drilled or planned

to drill in the land. Cromwell followed up on his request to participate in Anadarko’s wells multiple

times, but Anadarko never responded.

Before Cromwell obtained his leases, Anadarko drilled three vertical wells as operator

under the joint operating agreements: the Hughes & Talbot 75-23-1 Well; the Hughes & Talbot

75-25-1 Well; and the Hughes & Talbot 75-26-1 Well. 2 These wells were all on land located

within the bounds of Cromwell’s leases. The 75-26-1 well reached payout in August 2009, 3 and

Anadarko accordingly began sending Cromwell joint interest invoice summaries (also called joint

interest billings or “JIBs”) reflecting the share of operating expenses for the well chargeable to his

gross working interest and checks from the well’s revenues corresponding to his net working

interest. Cromwell paid all joint interest invoices Anadarko sent, which included charges for a

variety of operational costs, including equipment, labor, and environmental remediation. Anadarko

later started netting the amount Cromwell owed for the well’s costs each month against his share

of production proceeds, such that some months Cromwell paid Anadarko and others he received a

revenue check.

Anadarko also sent Cromwell an authorization for expenditure in June 2011. The

authorization was addressed to a “working interest owner” and listed Cromwell as a “Working

Interest Owner” on the signature page. Rather than an invoice for incurred operating expenses, the

2
Anadarko has since drilled other wells on the acreage, at least one of which is now producing.
3
Payout occurs when the costs of drilling and completing the well are recovered from the well’s production. Milestone
Operating, Inc. v. ExxonMobil Corp., No. 14-09-00765-CV, 2013 WL 4007817, at *1 n.1 (Tex. App.—Houston [14th
Dist.] Aug. 6, 2013, no pet.) (mem. op.).

3
authorization for expenditure “propose[d]” to replace the 75-26-1 well’s existing compressor for

an estimated total cost of $108,000. It asked Cromwell to “indicate[] [his] election to participate

in the installation” of the compressor “[p]ursuant to the terms of the governing Operating

Agreement[.]” Cromwell signed the authorization and paid the requested amount. However,

Anadarko later claimed it sent Cromwell this authorization for expenditure in error, as he “should

not [have] be[en] sent AFEs as a non-committed co-tenant” and did not have a signed joint

operating agreement with Anadarko.

The primary terms of the Ferrer and Tantalo leases passed in February 2012 and March

2014 respectively. Under the secondary term of each agreement, Cromwell’s leases would

continue only if production were occurring. Though Cromwell had not drilled a well, pooled his

leases with a producing lease, or entered into a joint operating agreement with Anadarko, Anadarko

continued sending Cromwell joint interest invoices and cutting him revenue checks. It also

continued communicating with Cromwell as if his leases were still effective. For example,

Anadarko sent Cromwell a letter about revenue netting in April 2014, referring to him as an

“owner,” and sent him a division order in October 2015, asking him to certify his ownership

interest in production in several properties. In 2016, it also listed Cromwell as a working interest

owner on an exhibit to a joint operating agreement, and its internal records listed one of

Cromwell’s leases as “held by production.”

Anadarko claims this too was a mistake. It says when it was identifying working interest

owners for the since-drilled 75-24-2H well in 2016, it realized Cromwell’s leases terminated at the

end of their primary terms. Still, Anadarko did not share that realization with Cromwell, and it

4
continued to pay him for his purportedly expired interest in the 75-26-1 well, 4 though it excluded

him from revenue checks for other producing wells on the acreage.

Then, working under its belief that Cromwell’s leases had expired, Anadarko took leases

from his lessors, Ferrer and the Tantalo Trust, in January 2017. Only in March 2018, in response

to Cromwell’s email following up on his request for information about his interest in the 75-24-

2H well, did Anadarko inform him that “[d]ue to the passage of time,” and because Anadarko

“never received from [Cromwell] an executed well election/[authorization for expenditure] or

[joint operating agreement] for any of the subject wells,” his leases “expired” and had been “leased

to [third] parties thereafter”—the third parties being Anadarko.

Cromwell sued Anadarko. He pursued declaratory judgment, asserted a trespass-to-try-title

action, and sought damages for the revenue proceeds he contends are his under the leases he says

never expired because he constructively participated in drilling sufficient to perpetuate his leases

into the secondary term. He also alleged he and Anadarko formed a partnership, under which

Anadarko breached its duties to him and committed fraud.

Anadarko filed traditional and no-evidence motions for summary judgment, contending all

Cromwell’s claims sound in trespass to try title, his leases terminated, the parties never formed a

partnership, and all of Cromwell’s claims except trespass to try title are barred by limitations.

Cromwell filed a cross-motion for partial summary judgment, arguing his leases are valid. 5 The

trial court held a hearing on the motions, then granted Anadarko’s motion and denied Cromwell’s

without stating the grounds for its decision.

4
Indeed, Anadarko has continued to send Cromwell invoices and revenue checks for the 75-26-1 well even after he
filed this lawsuit.
5
As Cromwell stated in his motion, whether his leases are still alive is “the core issue in the case.”

5
 Standard of Review

We review summary judgments de novo. McGehee v. Endeavor Acquisitions, LLC, 603

S.W.3d 515, 521 (Tex. App.—El Paso 2020, no pet.). In a traditional summary judgment motion,

the moving party bears the burden to establish there is no genuine issue of material fact and it is

entitled to judgment as a matter of law. Id. A no-evidence summary judgment movant “must assert

that there is no evidence of one or more essential elements of a claim or defense on which the non-

movant would have the burden of proof at trial.” Garcia v. J.J.S. Enters., Inc., 225 S.W.3d 57, 60

(Tex. App.—El Paso 2005, no pet.). When a defendant moves for summary judgment based on an

affirmative defense, it is entitled to summary judgment if it meets the burden of proving each

essential element of that defense. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996).

If both sides move for summary judgment and the trial court grants one but denies the other, we

review all summary judgment evidence and determine all questions presented, issuing the

judgment the trial court should have rendered. Mann Frankfort Stein & Lipp Advisors, Inc. v.

Fielding, 289 S.W.3d 844, 848 (Tex. 2009); see also Valence Operating Co. v. Dorsett, 164

S.W.3d 656, 661 (Tex. 2005) (reciting the same standard for motions for partial summary

judgment). When the trial court does not specify its basis for granting summary judgment, we will

affirm if any of the summary-judgment grounds presented have merit. FM Props. Operating Co.

v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

Analysis

On appeal, Cromwell first asserts that his leases are still valid because he “shouldered his

share of the costs, risks, and liabilities for operating a well on his leases” such that he constructively

participated in production sufficient to perpetuate his leases. Accordingly, he contends the

evidence supports his lease-based claims—i.e., his claims concerning the validity of his leases and

6
asserted to recover lost revenue damages—and the trial court thus erred in granting Anadarko’s

summary judgment on these claims. He also argues the evidence supports his partnership-based

claims, which he asks us to remand for trial. Last, he maintains Anadarko failed to prove its

limitations defense.

A. Have Cromwell’s leases terminated?

The key issue in this appeal is whether Cromwell’s leases are still valid. Cromwell says

they are because production has occurred in paying quantities, he participated in that production,

and no other conditions exist for him to maintain his leases. Anadarko disagrees that Cromwell’s

“participation” is sufficient to perpetuate his leases and contends his leases thus automatically

terminated at the end of their primary terms. Because termination is an affirmative defense,

Anadarko had to conclusively prove the leases terminated to obtain summary judgment on this

ground. Cimarex Energy Co. v. Anadarko Petro. Corp., 574 S.W.3d 73, 84 (Tex. App.—El Paso

2019, pet. denied).

Cromwell’s leases define the conditions under which his property interests terminate.

Because a mineral lease grants fee simple determinable to the lessee, the lessee’s mineral estate

may continue indefinitely, so long as he uses the land for its intended purpose. Id. at 89 (citing BP

Am. Prod. Co. v. Red Deer Res., LLC, 526 S.W.3d 389, 394 (Tex. 2017)). However, the lessee’s

mineral estate terminates automatically if the event upon which it is limited occurs. Id. “[T]hough

the habendum clause in a lease generally controls the mineral estate’s duration, other clauses may

be considered in determining the habendum clause’s term.” Id.

Both the Ferrer and Tantalo leases have a habendum clause defining the mineral estate’s

duration. Each habendum clause is “typical”: it “states that the lease lasts for a relatively short

fixed term of years (primary term) and then ‘as long thereafter as oil, gas or other mineral is

7
produced (secondary term).’” Id. (quoting Anadarko Petro. Corp. v. Thompson, 94 S.W.3d 550,

554 (Tex. 2002)). Each lease’s clause also requires “actual production in paying quantities,” as is

standard practice. Id. (noting a habendum clause’s use of the word “produce” means “producing

in paying quantities”).

Because the parties agree oil and gas has been produced in paying quantities on both leases,

the determinative question is whether that production may be attributed to Cromwell. Cromwell

maintains it can because while he did not physically drill his own well, he says he repeatedly

participated in the liabilities, risks, and costs of Anadarko’s production—in other words, Cromwell

argues, he constructively participated in operations to perpetuate his leases. Anadarko counters

that Cromwell’s actions are insufficient to constitute production under the leases’ terms and stated

purpose. The parties agree Cimarex is central to resolution of this issue.

i. Cimarex Energy Co. v. Anadarko Petroleum Corp.

Cimarex involved very similar circumstances. In that case, Cimarex Energy Co. and

Anadarko were cotenants who each held oil and gas leases with mineral interests in the same

property. Id. at 80. Cimarex’s lease contained a habendum clause providing for a primary term of

five years and a secondary term stating the lease would remain in force “as long thereafter as oil

and gas is produced from said land or from land with which said land is pooled.” Id. at 81. After

Anadarko drilled two producing wells on the property, which paid out during Cimarex’s primary

term, Cimarex sued Anadarko for failure to account for its share of production. Id. at 83. The

parties entered into a settlement agreement, under which Anadarko made a lump-sum payment for

production from the wells and was required to account to Cimarex monthly for its share of

production. Id. at 83–84. However, Anadarko stopped paying Cimarex the month it believed

Cimarex’s lease expired based on the termination date for the primary term of its lease on the

8
property, then asserted its entitlement to the top lease over Cimarex’s mineral interest. Id. at 84.

Cimarex sued for breach of contract based on Anadarko’s obligations under the settlement

agreement to account for Cimarex’s share of production from the wells. Id.

Anadarko moved for summary judgment based on its defense that Cimarex’s lease

terminated at the end of its primary term due to Cimarex’s failure to drill or operate a well on the

property before that date. Id. Cimarex filed its own motion for partial summary judgment,

contending in relevant part that its lease continued into the secondary term because it was entitled

to rely on Anadarko’s production to extend the lease, or alternatively, the settlement agreement

served as a joint operating agreement between Cimarex and Anadarko, satisfying any requirement

that Cimarex may have had to actively participate in production. Id. at 85. The trial court granted

Anadarko’s motion and denied Cimarex’s, determining that evidence established Cimarex’s lease

terminated at the end of its primary term. Id. Cimarex appealed, contending the lease terms were

ambiguous as to whether it was required to directly cause production on the property to perpetuate

the lease or, alternatively, the lease unambiguously allowed it to rely on Anadarko’s production to

extend the lease into the secondary term. Id. In support of its alternative argument, Cimarex argued

the settlement agreement served as a joint operating agreement, allowing it to claim Anadarko’s

production as its own. 6 Id.

On appeal, this Court first concluded the lease was not ambiguous. Id. at 88. We then

considered Cimarex’s argument that it could rely on Anadarko’s production to perpetuate its lease.

Id. at 90. Cimarex argued the plain language of the habendum clause required production on the

property regardless of who caused it. Id. Cimarex did not allege it caused or contributed to any

6
Cimarex also asserted an estoppel argument and issue regarding an attorney’s fees award not relevant here. Cimarex,
574 S.W.3d at 85–86.

9
production; instead, it argued the lease’s use of the passive voice allowed it to rely on Anadarko’s

production to extend its lease into the secondary term. 7 Id.

In determining whether Cimarex itself had to cause production, we looked to precedent,

namely this Court’s decision in Hughes v. Cantwell, 540 S.W.2d 742 (Tex. App.—El Paso 1976,

writ ref’d n.r.e.). In Hughes, the lessee made a similar argument: he contended he did not have to

continue making delay rental payments to perpetuate his lease because another lessee began

drilling on the property. 540 S.W.2d at 743. We rejected that argument primarily because the lease

included several clauses imposing obligations on the lessee to engage in production (e.g., a clause

giving the lessee the power to pool the lease, a cessation of production clause providing the lease

would not terminate if the lessee continued drilling operations after hitting a dry hole, and a force

majeure clause providing the lease would not terminate if the lessee could not comply with the

lease’s terms). Id. at 744. Further, we found it significant that the stated purpose of the lease was

for the drilling and producing of oil and gas such that it followed the lessee was expected to “do

something to bring about that exploration and production of oil and gas” by, for example, doing

the drilling himself, assigning it to someone else to drill, or pooling with others to benefit from

their drilling—none of which the lessee did. Id. Indeed, the Hughes lessee declined an offer by the

producing cotenant to join in sharing drilling expenses of a new well. Id. at 743. Thus, the lessee’s

failure to pay the delay rental or begin drilling on the leased land, “personally or constructively”

resulted in the termination of his lease. Id. at 744 (collecting cases standing for the proposition that

a lessee “must participate or pay his share of the drilling in order to keep his lease alive”).

7
The secondary term stated the lease remained active after the primary term “‘as long thereafter as oil or gas is
produced from said land or from land with which said land is pooled.’” Id. at 81.

10
 Applying the principles of Hughes in Cimarex, we concluded the lease required Cimarex

to “take some action to cause production” to keep its lease alive; it could not rely on a cotenant’s

production absent cash consideration paid to lessors. Cimarex, 574 S.W.3d at 93. Like the Hughes

lease, Cimarex’s lease expressly stated its purpose was to produce oil and gas. Id. at 91–92. It also

contained several provisions requiring Cimarex to take action to keep the lease alive, implying that

the lessors intended for Cimarex to cause production on the property to extend the lease into the

secondary term, as in Hughes. Id. at 92. Though Cimarex sought to distinguish its lease from that

in Hughes—namely because the Hughes lessee had the option to substitute actual production with

payment of delay rentals in the secondary term (and Cimarex’s lease did not offer that option)—

we disagreed, concluding that “where a mineral lease states that its primary intent is for the

exploration, drilling and production of oil and gas, it naturally follows that the lessors’ intent is to

require the lessee to, at some point in time, take action to cause production on the land, or provide

some type of cash consideration, such as delay rental payments, to keep a lease alive.” Id.

Cimarex also contended that unlike the lessee in Hughes, it made repeated, albeit

unsuccessful, attempts to enter a joint operating agreement with Anadarko. Id. at 95. We agreed

that if a lessee joins a joint operating agreement with a cotenant engaged in production on the land,

that agreement fulfills the lessee’s requirement to cause production and perpetuate the lease. Id. at

96. But we concluded Cimarex’s unsuccessful attempts did not have the same effect. Id. at 95.

Without a joint operating agreement, Cimarex and Anadarko were merely cotenants on the

property who owed no duties to each other and were entitled to act independently. Id. Cimarex

thus “knowingly took the risk that other tenants on the land might refuse to agree to a joint

operating agreement,” forcing it to commence production on its own as contemplated by the lease.

Id.

11
 We also rejected Cimarex’s argument that the parties’ settlement agreement should be

considered the equivalent of a joint operating agreement. Id. at 96. “[T]he hallmarks of a joint

operating agreement include an agreement to share in the expense of development and operation”

and should describe the proportionate costs and liabilities to be shared by the parties. Id. at 97

(internal citation omitted). However, the parties’ settlement agreement gave Cimarex the rights of

a cotenant—and explicitly referred to Cimarex as a “non-participating co-tenant”—and did not

contain any language suggesting the parties intended to enter a joint operating agreement,

including an agreement to jointly develop the property, designate Anadarko as operator, or entitle

Cimarex to consider Anadarko’s production as its own. Id. Most significantly, the settlement

agreement did not allocate any costs or risks between the parties or impose responsibility on

Cimarex to share in any of Anadarko’s potential losses; Cimarex instead “stood to reap the profits

from Anadarko’s production, while assuming no risk for any losses.” Id. Thus, without a joint

operating agreement, Anadarko simply had the duty to account to Cimarex as a cotenant for “the

value of any minerals taken, less the reasonable costs of production and marketing”—though it

also could not force Cimarex to share in the risks of production. Id. at 96 (collecting cases).

Cimarex also pointed to the parties’ course of conduct after entering the settlement

agreement as confirmation they intended for it to serve as a joint operating agreement, emphasizing

that Anadarko sent it information regarding its proportionate costs of repairs and other expenses

and asked for Cimarex’s approval of costs. Id. at 98. Though the parties’ post-settlement conduct

was ultimately irrelevant given the unambiguous language of the settlement agreement, we agreed

the evidence did not support a finding that the parties treated the settlement agreement as a joint

operating agreement. Id. at 98–99. We concluded Anadarko shared information regarding

operating costs and expenses to apprise Cimarex of how it calculated its net share of production;

12
there was no evidence Cimarex agreed to shoulder any of the costs or liabilities of that production

as would be typical of parties to a joint operating agreement or inherent in the operation of the

producing wells. Id. at 99. Instead, uncontroverted evidence reflected Anadarko paid all costs and

assumed all risks of drilling and operating the wells, whereas Cimarex merely acquiesced in

deductions of its share of operating costs. Id. Thus, even though at times in the parties’

communications Anadarko referenced an “Operating Agreement” and referred to Cimarex as a

“Working Interest Owner,” we determined the parties did not engage in any conduct suggesting

they treated the settlement agreement as a joint operating agreement. Id. at 99 & n.14.

ii. The parties’ arguments regarding Cimarex’s holdings

Here, Cromwell contends he has done exactly what Cimarex did not: participated in

production by sharing in its costs, risks, and liabilities. Specifically, he points to hundreds of pages

of monthly joint interest invoice details, reflecting his proportional share of various costs

associated with the 75-26-1 well, as well as his acceptance of Anadarko’s proposal to fund a new

compressor. He also contends he shared in costs related to the risks and liabilities of production

by paying for “damages” related to the well and reimbursing Anadarko for spill containment,

cleanup, and remediation costs. Cromwell also emphasizes he paid interest, which he would not

have been required to do if he were a nonparticipating cotenant. 8

Collectively, Cromwell says this is “constructive participation” sufficient to perpetuate his

lease under both Cimarex and Hughes. See id. at 91 (discussing Hughes); Hughes, 540 S.W.2d at

743 (“Lessee must perform either directly or constructively as provided by the contract to keep it

alive.”). In other words, Cromwell contends by paying Anadarko for invoiced costs of the

8
Cromwell relatedly notes Anadarko’s shift to revenue netting did not alter the substance of his participation because
on months when costs exceeded revenues, he still paid Anadarko.

13
producing well, he was “do[ing] something to bring about that exploration and production of oil

and gas.” Cimarex, 574 S.W.3d at 91 (internal quotation marks omitted). In sum, Cromwell

maintains that he helped fund infrastructure that aided in the production of oil and gas on land

covered by his leases such that he took “action to cause production on the land.” Id. at 92.

Cromwell thus contends Anadarko’s position that his leases automatically terminated is contrary

to the rule against surprise forfeitures. He asks us to reverse the trial court’s grant of summary

judgment on the termination issue and render judgment in his favor.

Anadarko counters that Cromwell’s leases are indistinguishable from the lease in Cimarex,

and both reflect the parties’ intent that the lessee must cause the production of oil and gas to extend

his lease beyond the primary term. Anadarko highlights several provisions in Cromwell’s leases it

contends confirm the lessors intended to impose upon Cromwell the obligation to cause production

to keep the lease alive, including the stated purpose of the leases, 9 a continuous operations

9
The Ferrer lease describes its purpose as “exploring by geological, geophysical and all other methods, and of drilling,
producing and operating wells for the recovery of oil, gas, and other hydrocarbons . . . that may be produced from any
well on the leased premises[.]” The Tantalo lease’s “sole and only purpose” is “exploring, drilling, operating power
stations, and construction of roads and structures thereon to produce, save, care for, treat and transport oil, gas and
liquid hydrocarbons” from the leased land.

14
provision, 10 a force majeure clause, 11 the right to pool or combine his lease with cotenants, an

assignment clause, the right to free use of oil and gas from the leased premises, 12 the right to

remove property from the lease after the lease expired, and a provision requiring Cromwell to

protect against drainage. 13

10
The Ferrer lease’s continuous operations provision reads:
If at the expiration of the primary term of this lease oil, gas or other minerals are not being produced
from the leased premises or land pooled therewith, but Lessee is then engaged in drilling or
reworking operations thereon, this lease shall remain in force so long as drilling or reworking
operations are prosecuted (whether on the same or different wells or on the land or land pooled
therewith) with no cessation of more than ninety (90) consecutive days, and if they result in
production, so long thereafter as oil, gas, or other minerals are produced from said land or land
pooled therewith.
Likewise, the Tantalo lease states:
If, prior to discovery and production of oil or gas on said premises, Lessee should drill a dry hole or
holes thereon, or if after discovery and production of oil or gas, the production thereof should cease,
permanently or temporarily, from any cause, and if in either case, this lease is not then otherwise
maintained in force and effect, this lease shall not terminate if operations for drilling or reworking
are commenced or resumed within sixty (60) days thereafter . . . .
11
The Ferrer lease’s force majeure provision reads:
Lessee shall not be liable for delays or defaults in its performance of any agreement or covenant
hereunder due to force majeure. . . . If Lessee is required, ordered or directed by any [law] to cease
drilling operations, reworking operations, or producing operations, then until such time as such [law]
or force majeure is terminated and for a period of ninety (90) days after such termination each and
every provision of this lease that might operate to terminate it . . . shall be suspended and inoperative
and this lease shall continue in full force. If any period of suspension occurs during the primary
term, the time thereof shall be added to such term.
The Tantalo lease also has a force majeure provision, which states:
Should Lessee be prevented, through no fault or omission on its own part, from complying with any
express or implied covenant of this lease, from conducting drilling or reworking operations thereon
or from producing oil or gas therefrom by reason of or by operation of any federal or state law or
any order, rule or regulation of governmental authority, then while so prevented, Lessee’s obligation
to comply with such covenant shall be suspended, and . . . this lease shall be extended while and so
long as Lessee is prevented by any such cause from conducting drilling or reworking operations on
or from producing oil or gas from the leased premises. Lessee shall not be liable for delays or
defaults in its performance of any agreement or covenant hereunder due to force majeure.
12
The Ferrer lease gives Cromwell “free use of oil, gas and water from said land . . . for all operations hereunder,
including, but not limited to, repressuring, pressure maintenance, cycling, and secondary recovery operations . . . .”
Similarly, the Tantalo lease gives Cromwell “free use of oil or other liquid hydrocarbons . . . for the conduct of all
drilling and producing operations conducted on the leased premises . . . .”
13
The Tantalo lease requires that if a well on adjacent land begins producing oil or gas and is draining the leased
premises, “Lessee shall . . . either adequately protect the oil and gas under the lands covered hereby from such drainage
by drilling such offset protection well or wells as a reasonably prudent operator would drill under the same or similar

15
 Anadarko then asserts that to cause production and perpetuate his leases under Cimarex,

Cromwell could have drilled a well himself, assigned his lease to someone else to drill, pooled his

lease with others and benefitted from their drilling, or entered a joint operating agreement with a

drilling cotenant. Because Cromwell did none of those things, Anadarko says his leases

automatically terminated when their primary terms expired, even though (like Cimarex) Cromwell

repeatedly asked Anadarko to participate in its wells to no avail.

As to Cromwell’s main argument—that he constructively participated in drilling operations

by paying his share of invoiced costs—Anadarko maintains it treated Cromwell no differently

from Cimarex. Specifically, Anadarko emphasizes that we rejected Cimarex’s position that

Anadarko treated it as if the parties’ settlement agreement was indistinguishable from a joint

operating agreement, even though the record showed (1) Anadarko repeatedly sent Cimarex joint

interest invoices and authorizations for expenditures; (2) Anadarko referred to Cimarex as a

“working interest owner” in various communications; and (3) Anadarko stated that an

authorization for expenditure was prepared pursuant to the terms of an “Operating Agreement”

governing the well. Anadarko distinguishes the costs Cromwell paid as “operating expenses”

because the costs were incurred after the 75-26-1 well was already producing in paying quantities.

Because Cromwell did not share in the “costs of drilling, completing, and obtaining initial

production” from an Anadarko well, Anadarko says those payments cannot amount to participation

or indicative of a joint-operating relationship; in other words, Anadarko maintains Cromwell did

not share in the risk of drilling or exploration, including the risk that a well might be unprofitable.

Thus, without Cromwell’s participation in production, Anadarko says it treated Cromwell no

circumstances and by completing and producing the same . . . or, in the alternative, execute and deliver to Lessor a
partial release surrendering the horizon(s) being drained . . . .”

16
differently than its cotenant in Cimarex. Because Cromwell neither signed a joint operating

agreement with Anadarko nor took action to cause production of oil and gas during the primary

terms of his leases, Anadarko contends a straightforward application of Cimarex’s holdings means

Cromwell’s leases automatically terminated at the end of the primary terms.

iii. Applying Cimarex

As an initial matter (though neither party disputes it), under Cimarex, Cromwell was

required to “take some action to cause production” on the leased property to keep his leases alive,

despite the use of the passive voice in the habendum clause of each of his leases. See Cimarex, 574

S.W.3d at 93. Both the expressly stated purpose of Cromwell’s leases and the other provisions

noted above align with the portions of the Cimarex lease we found indicative of the parties’ intent

to require Cimarex to take action to cause production on the subject project. See id. at 92

(discussing “various other provisions imposing requirements on Cimarex to take action in other

contexts to keep the lease alive,” including a cessation clause, a pooling clause, an assignment

clause, the right to use oil and gas for operations, and the right to remove property from the lease

at the end of the lease’s term).

However, the action Cromwell took was insufficient to maintain his leases under Cimarex.

Though Cromwell frames his argument differently than Cimarex did, 14 his purported participation

is substantively equivalent to Cimarex’s. For example, Cromwell points to his payments of

monthly joint interest invoices as evidence of his construction participation because the invoices

included costs for certain items (like snubbing units, compressors, and pumps) that he contends

helped the well “produce oil and gas longer.” He also underscores the authorization for

14
Cimarex did not argue its actions amounted to constructive participation. Instead, it contended it could rely on
Anadarko’s production to perpetuate its lease.

17
expenditure, in which he paid his share of funding a new compressor, which he argues amounts to

participation because a nonparticipating cotenant would not ordinarily fund new equipment before

it was installed. But Cimarex paid the same types of costs. For example, Cimarex argued it too

paid its proportional share of expenses (which Anadarko netted out of its monthly share of

production) in the form of joint interest billing statements. Even after Anadarko stopped paying

Cimarex for production from the wells because it contended Cimarex’s leases terminated,

Anadarko continued to issue Cimarex joint interest billing statements reflecting Cimarex’s “equity

share,” bill Cimarex for its share of operating expenses, and notify Cimarex of planned future

expenditures for which it would be responsible. Cimarex also pointed to authorizations for

expenditure Anadarko issued to fund, for example, repair costs and costs to switch a well to a new

type of pumping system. Despite these examples, we concluded there was “no evidence that

Cimarex agreed to shoulder any of the costs or to assume any of the liabilities of that production[.]”

Id. at 99. Instead, Cimarex “accepted the invoices and other cost information that it received from

Anadarko and acquiesced in deductions made by Anadarko in calculating Cimarex’s net share of

production.” Id.

The costs Cromwell points to as his “constructive participation” instead reflect his

proportionate share of a producing well’s operating expenses ordinarily owed by a

nonparticipating cotenant. See Cox v. Davison, 397 S.W.2d 200, 203 (Tex. 1965) (noting that the

producing cotenant owes its nonparticipating cotenant “the proportionate market value of the

product less the proportionate necessary and reasonable costs of producing and marketing”). These

costs are not indicative of the parties’ intent that Cromwell “shouldered any risk or liabilities

inherent in the operation” of the 75-26-1 well. Cimarex, 574 S.W.3d at 99. Cromwell insists he

participated in production because when costs exceeded revenues, he still paid Anadarko for its

18
monthly expenses. Indeed, “the law raises no obligation binding a nonjoining cotenant to pay a

part of the costs of development.” Cox, 397 S.W.2d at 201 (emphasis added); see also Cimarex,

574 S.W.3d at 96 (“Although a co-tenant must share the profits it reaps from production on the

land with other co-tenants, it cannot force the other co-tenants to share in the risks; in other words,

‘if a co-tenant drills a dry hole, he does so at his own risk and without right to reimbursement from

his co-tenant (in the absence of an agreement therefor) for the drilling costs.’” (quoting Willson v.

Superior Oil Co., 274 S.W.2d 947, 950 (Tex. App.—Texarkana 1954, writ ref’d n.r.e.))). But once

“mineral property is developed by one cotenant,” the producing cotenant is entitled to “be

reimbursed out of production if and when production results.” Cox, 397 S.W.2d at 201–02. That

is what Anadarko’s invoiced costs for the 75-26-1 well reflect—even in months when costs

exceeded production revenues. Just as we did not convert Cimarex’s payments for repair costs and

equipment replacements to “constructive production” that would perpetuate its lease, we decline

to do the same here. See Cimarex, 574 S.W.3d at 98–99.

Cimarex also forecloses Cromwell’s argument that Anadarko confirmed his ongoing

interests by referring to him as a “working interest owner” or “owner” in various communications

and noting it prepared an authorization for expenditure subject to the “operating agreement”

governing the well. Again, we rejected the same argument in Cimarex, where Anadarko also

referenced the existence of an “operating agreement” (despite no joint operating agreement

between the parties) and referred to Cimarex as a “Working Interest Owner.” Id. at 99 n.14. We

noted that “regardless of how the parties may have referred to each other in communications, the

parties did not in fact engage in any conduct that would suggest that they were treating the

Settlement Agreement as a joint operating agreement with each other.” Id. at 99. Though here there

is no settlement agreement between Cromwell and Anadarko further defining the relationship as

19
there was in Cimarex, that does not change the fact that despite repeated requests, Cromwell was

never provided the opportunity to enter a joint operating agreement with Anadarko. Thus, despite

Anadarko’s references to Cromwell as an “owner,” as in Cimarex, the parties did not engage in

conduct that would otherwise suggest they had a joint operating relationship. Cromwell’s course-

of-conduct argument cannot overcome the absence of an agreement between the parties “to share

in the ‘expense of development and operation.’” Id. at 97 (quoting Willson, 274 S.W.2d at 951).

Because Cromwell cannot “rightfully say that the exploration and development of the premises is

his act in whole or in part[,]” he has not constructively participated in production. Willson, 274

S.W.2d at 951.

Anadarko (in its telling, mistakenly) treated Cromwell as if his leases had not expired for

years after their primary terms lapses by continuing to send him joint interest billing statements

and revenue checks, accepting his payment for well expenses, and communicating with him as if

his interests were still valid; however, that conduct cannot change the terms of an unambiguous

mineral lease outlining the terms under which Cromwell’s interests terminated. Because Cromwell

did not cause production of oil or gas on the leased land, his leases terminated at the end of the

primary term. And because the habendum clause in the leases is a special limitation, Cromwell’s

forfeiture argument is inapplicable, as special limitations do not result in forfeitures. Endeavor

Energy Res., L.P. v. Discovery Operating, Inc., 554 S.W.3d 586, 606 (Tex. 2018) (noting “[a]

special limitation in an oil and gas lease provides that the lease will automatically terminate upon

the happening of a stipulated event,” including, for example, “failure to commence drilling or

reworking operations within the time the lease required”).

Having determined Cromwell’s leases automatically terminated at the end of their

respective primary terms, we do not need to consider whether evidence supports Cromwell’s lease-

20
based claims. 15 The trial court properly granted summary judgment to Anadarko on its affirmative

defense of termination. Issues One and Two are overruled.

B. Does evidence support Cromwell’s partnership-based claims?

Cromwell also argues the trial court erred in granting summary judgment on his

partnership-based claims (which do not turn on whether his leases remain valid). 16 He claims

evidence supports several factors indicating a partnership exists under the Texas Business

Organizations Code, and his partnership-based claims should therefore be remanded for trial. 17

Anadarko responds that the evidence Cromwell points to as indicative of his partnership

with Anadarko is duplicative of the evidence he cites in support of his constructive participation

argument and equally consistent with Anadarko accounting to Cromwell as a cotenant. Anadarko

also argues Cromwell has no evidence of a partnership that would satisfy the statute of frauds.

Without a partnership, Anadarko maintains it owed no fiduciary duty to Cromwell, and

Cromwell’s breach of fiduciary duty and accounting claims necessarily fail as a matter of law.

Anadarko also contends Cromwell’s fraud claim fails because it hinges on a legal question—i.e.,

Anadarko’s representations that his leases were valid—and fraud claims cannot be predicated upon

legal misrepresentations.

i. Did Anadarko and Cromwell form a partnership?

15
To the extent Cromwell argues his breach of contract claim is based not on his leases but on the authorization for
expenditure Anadarko sent in June 2011, that agreement cannot support his broader argument that his leases remain
valid because the authorization for expenditure lacks the hallmarks of a joint operating agreement described above.
The authorization for expenditure instead concerned the narrow issue of whether Cromwell elected to participate in
the costs of installing a new compressor on the 75-26-1 well.
16
Specifically, Cromwell sued Anadarko for breach of fiduciary duty, an accounting under the Texas partnership
statute, and fraud.
17
Cromwell did not seek summary judgment on his partnership-based claims in the trial court, so we cannot render
judgment in his favor as to these claims.

21
 The Texas Business Organizations Code defines a partnership as “an association of two or

more persons to carry on a business for profit as owners,” regardless of whether they intended to

create a partnership or call their association a partnership or joint venture. TEX. BUS. ORG. CODE

ANN. § 152.051(b); but see Ingram v. Deere, 288 S.W.3d 886, 898 (Tex. 2009) (expressing

skepticism that the legislature “intended to spring surprise or accidental partnerships on

independent business persons”). The statute outlines a list of factors indicating that individuals

have formed a partnership, including:

(1) receipt or right to receive a share of profits of the business;

(2) expression of an intent to be partners in the business;

(3) participation or right to participate in control of the business;

(4) agreement to share or sharing:

A. losses of the business; or

B. liability for claims by third parties against the business; and

(5) agreement to contribute or contributing money or property to the business.

TEX. BUS. ORG. CODE ANN. § 152.052(a). A partnership may exist even without proof of all the

listed factors, as courts consider whether a partnership exists under the statute through a totality-

of-the-circumstances test. Energy Transfer Partners, L.P. v. Enter. Products Partners, L.P., 593

S.W.3d 732, 737 (Tex. 2020). These factors “serve as a proxy for the common law requirement of

intent to form a partnership by identifying conduct that logically suggests a collaboration of a

business’s purpose and resources to make a profit as partners.” Ingram, 288 S.W.3d at 896. The

statute also provides that co-ownership of property by itself does not indicate that a person is a

partner in the business, even if the ownership is “combined with sharing of profits from the

property.” TEX. BUS. ORG. CODE ANN. § 152.052(b)(2)(B).

22
 Cromwell argues there is evidence of at least four of the partnership factors and thus a fact

issue exists for trial. First, he claims he has “receive[d] a share of profits[,]” pointing to Anadarko’s

repeated revenue payments. See id. § 152.052(a)(1). That Cromwell received revenue checks from

the 75-26-1 well is undisputed.

Next, Cromwell contends he and Anadarko expressed their “intent to be partners in the

business,” pointing to different communications and invoices he received from Anadarko. Certain

documents were titled “Partner Account Statement” and included a “Partner Number,” labeling

Cromwell’s interest with a unique identifier that included the letters “JV,” for joint venture, which

Cromwell also included on the memo line of his checks to Anadarko. When determining whether

these examples indicate an intent to be partners in the legal sense, “[w]e must look to the words

used, the context in which the statement was made, and the identity of the speaker to determine if

such a statement constitutes legally significant evidence of an expression of intent.” Westside

Wrecker Serv., Inc. v. Skafi, 361 S.W.3d 153, 170 (Tex. App.—Houston [1st Dist.] 2011, pet.

denied) (citing Ingram, 288 S.W.3d at 900). “Evidence of expressions of intent could include, for

example, the parties’ statements that they are partners, one party holding the other party out as a

partner on the business’s letterhead or name plate, or in a signed partnership agreement.” Ingram,

288 S.W.3d at 900. “[M]erely referring to another person as ‘partner’ in a situation where the

recipient of the message would not expect the declarant to make a statement of legal significance

is not enough.” Id.; see Westside Wrecker, 361 S.W.3d at 170 (noting that “the term ‘partner’ is

regularly used in common vernacular and may be used in a variety of ways”).

Simply including the word “partner” on invoices or identifying Crowell’s account with a

“JV” number is not enough to constitute legally significant evidence of Anadarko’s expression of

intent to be business partners with Cromwell because including those terms on invoices is not a

23
situation in which any recipient would expect a statement of legal significance. See Ingram, 288

S.W.3d at 900. This is particularly true when viewed in the larger context of the parties’

relationship, as Anadarko never assented to Cromwell’s multiple requests to participate in the

wells Anadarko drilled and planned to drill over the course of his leases. Looking to the words

used in context, there is no evidence of the parties’ expression of their intent to be business

partners.

Third, Cromwell claims he shared in the losses of the business because Anadarko’s joint

interest billing statements included line items reflecting his proportionate cost for damages and

environmental remediation. He also argues he shared in liabilities because he accepted Anadarko’s

authorization for expenditure to replace a compressor and thus accepted the risk his investment

would prove to be a loss. However, the payments Cromwell points to are operating expenses

associated with the 75-26-1 well, as discussed above. “[S]haring specific expenses is not evidence

of sharing losses or liabilities.” Westside Wrecker, 361 S.W.3d at 172 (citing Ingram, 288 S.W.3d

at 902). There is no evidence demonstrating the parties shared losses or liability.

Lastly, Cromwell similarly contends he contributed money and real property (i.e., his

working interest in the minerals) to the business. However, as above, his evidence of cash

contributions reflect his proportional share of various costs associated with the 75-26-1 well.

“[S]haring in expenses does not necessarily constitute contributing money or property to a

partnership.” Id. While the sharing of expenses is consistent with a partnership between parties, it

is equally consistent with the possibility that Cromwell and Anadarko agreed as cotenants to share

operating costs with the 75-26-1 well, in which Cromwell contributed his proportionate interest to

expenses. See id. (citing examples). Indeed, Cromwell paid Anadarko—not to an alleged

partnership entity. See id. at 172–73. Further, any real property contribution to the purported

24
partnership fails as a matter of law because “[t]he law is clear that an interest in real estate cannot

become a partnership asset unless the agreement concerning the property is in writing the same as

any other contract concerning the sale of land.” Carpenter v. Phelps, 391 S.W.3d 143, 153 (Tex.

App.—Houston [1st Dist.] 2011, no pet.).

In sum, the only evidence Cromwell has raised of his alleged partnership with Anadarko is

the first statutory factor: that he received a share of profits through the 75-26-1 well’s revenue

checks. But we agree with Anadarko that this is equally consistent with Anadarko accounting to

Cromwell as a cotenant. Because cotenants sharing profits from a property, without more, does

not indicate a partnership, Cromwell has raised no evidence of a partnership with Anadarko.

Further, even assuming Cromwell had raised evidence supporting the existence of a

partnership, that evidence cannot overcome the statute of frauds. What Cromwell points to as

evidence of the purported partnership reflects one business purpose: the exploring, drilling, or

producing of hydrocarbons in his leased land. In other words, Cromwell contends even though he

has no signed joint operating agreement with Anadarko, the two parties created a partnership with

the same effect. But a joint operating agreement or joint venture is subject to the statute of frauds.

Id. Absent a writing to satisfy the statute of frauds, there is no evidence of the parties’ intent to

create a partnership for any business purpose other than one unenforceable under the statute of

frauds—i.e., to develop the mineral acreage. See id.

Cromwell and Anadarko were cotenants—not partners—and thus did not owe one another

fiduciary duties. Zimmerman v. Texaco, Inc., 409 S.W.2d 607, 614 (Tex. App.—El Paso 1966,

writ ref’d n.r.e.) (“[T]here exists no fiduciary or agency relationship between cotenants or tenants

in common, in the absence of agreement or contract so providing . . . . [E]ach owner in a co-

25
tenancy acts for himself[.]”). Summary judgment on Cromwell’s claims for breach of fiduciary

duty and accounting under the partnership statute was therefore proper.

ii. Can Cromwell’s fraud claim survive absent a partnership with Anadarko?

Cromwell’s fraud claim is premised on Anadarko’s representations that his leases were still

valid after their respective primary terms lapsed. In other words, Cromwell says if Anadarko’s

termination defense is correct and his leases have expired, its subsequent monthly representations

regarding his ongoing interests are false.

However, “[g]enerally speaking, fraud cannot be predicated upon misrepresentations of

law or misrepresentations as to matters of law.” Nat’l Sec. Life & Cas. Co. v. Benham, 233 S.W.2d

334, 338 (Tex. App.—Amarillo 1950, writ ref’d n.r.e.); see Fina Supply, Inc. v. Abilene Nat. Bank,

726 S.W.2d 537, 540 (Tex. 1987) (“A representation as to the legal effect of a document is

regarded as a statement of opinion rather than of fact and will not ordinarily support an action for

fraud.”). Though exceptions to this rule exist, including where there is a fiduciary relationship

between the parties, none applies here—namely because we concluded no partnership exists

between Cromwell and Anadarko. See Fina Supply, 726 S.W.2d at 540 (discussing exceptions to

the general rule).

Whether Cromwell’s leases were valid or terminated at the end of their primary terms is a

legal question. Because Cromwell’s fraud claim is based on a misrepresentation of law, the trial

court properly granted summary judgment in Anadarko’s favor.

Issue Three is overruled. 18

18
Having overruled Issues One, Two, and Three, we need not address Issue Four regarding Anadarko’s limitations
defense.

26
 CONCLUSION

For the above reasons, we affirm the trial court’s judgment.

YVONNE T. RODRIGUEZ, Chief Justice

September 27, 2023

Before Rodriguez, C.J., Palafox, and Soto, JJ.

27