Martha Lagrone and Thomas Wooten v. Sendero Energy, Inc.--Appeal from 123rd District Court of Panola County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00085-CV
______________________________
MARTHA LAGRONE AND THOMAS WOOTEN, Appellants
V.
SENDERO ENERGY, INC., Appellee
On Appeal from the 123rd Judicial District Court
Panola County, Texas
Trial Court No. 2005-328
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION

Martha LaGrone and Thomas Wooten (collectively, LaGrone) (1) are the owners of the surface estate of real property and Sendero Energy, Inc. (Sendero) is the operator of a gas well on the LaGrone property pursuant to an existing oil and gas lease. LaGrone brought suit against Sendero for damages to the surface estate. Only two questions were presented to the jury: (1) whether Sendero had been negligent and (2) if Sendero was negligent, the amount of damages which had been sustained. The jury returned a broad-form answer that Sendero was not negligent and, therefore, the jury did not answer the second question. LaGrone appeals, asserting one issue: that the court abused its discretion in not submitting to the jury LaGrone's requested instruction concerning a statutory duty. (2) Because LaGrone fails to show how the particular Texas Railroad Commission regulation proposed to be given as an instruction to the jury was raised by the pleadings or the evidence so as to entitle LaGrone to submission of that jury instruction under Tex. R. Civ. P. 278, we affirm.

I. STANDARD OF REVIEW

We review a trial court's decision not to submit a particular instruction under an abuse of discretion review. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006); In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000). The trial court has considerable discretion to determine necessary and proper jury instructions. V.L.K., 24 S.W.3d at 341. If an instruction might aid the jury in answering the issues presented to it or if there is any support in the evidence for an instruction, the instruction is proper. See Louisiana-Pac. Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998); Reinhart v. Young, 906 S.W.2d 471, 472 (Tex. 1995); La. & Ark. Ry. Co. v. Blakely, 773 S.W.2d 595, 598 (Tex. App.--Texarkana 1989, writ denied).

A party is entitled to a jury question, instruction, or definition if the issue is raised by the pleadings and the evidence. Tex. R. Civ. P. 278. "When a trial court refuses to submit a requested instruction on an issue raised by the pleadings and evidence, the question on appeal is whether the request was reasonably necessary to enable the jury to render a proper verdict." Shupe, 192 S.W.3d at 579. If we determine that an error exists, we then consider the pleadings, the evidence presented at trial, and the charge in its entirety in determining whether the error merits reversal. Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass'n, 710 S.W.2d 551, 555 (Tex. 1986). Error in the charge to the jury is cause for reversal only if it is harmful error; in other words, if the error caused or was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment, then the judgment should be reversed. Tex. R. App. P. 44.1(a)(1); Island Recreational Dev. Corp., 710 S.W.2d at 555.

II. ENTITLEMENT TO PROPOSED INSTRUCTION

A. The Proposed Instruction

The instruction (Instruction 13) which was requested by LaGrone, the submission of which was denied by the trial court, stated:

YOU ARE INSTRUCTED THAT THE TEXAS RAILROAD COMMISSION RULES DEFINE A RESERVE PIT AS . . . .

 

YOU ARE FURTHER INSTRUCTED THAT THE TEXAS RAILROAD COMMISSION RULES DEFINE A FRESH MAKEUP WATER PIT AS . . . .

YOU ARE FURTHER INSTRUCTED THAT SAID RULES REQUIRE THAT RESERVE PITS AND MUD CIRCULATION PITS WHICH CONTAIN FLUIDS WITH A CHLORIDE CONCENTRATION OF 6,100 MG/LITER OR LESS AND FRESH MAKEUP WATER PITS SHALL BE DEWATERED, BACKFILLED, AND COMPACTED WITHIN ONE YEAR OF CESSATION OF DRILLING OPERATIONS.

 

YOU ARE FURTHER INSTRUCTED THAT RESERVE PITS AND MUD CIRCULATION PITS WITH A CHLORIDE CONCENTRATION IN EXCESS OF 6,100 MG/LITER SHALL BE DEWATERED WITHIN 30 DAYS AND BACKFILLED AND COMPACTED WITHIN ONE YEAR OF CESSATION OF DRILLING OPERATIONS.

 

This proposed instruction generally tracks parts of the Texas Railroad Commission's Oil and Gas Division's regulations for water protection in Rule 3.8. See 16 Tex. Admin. Code 3.8(a)(9), (a)(12), (d)(4)(G)(i)(I), (d)(4)(G)(i)(II). The court denied the instruction during an off-the-record charge conference, though the parties lodged their objections on the record. The final charge included definitions for "Negligence," "Ordinary care," and "Proximate cause," and a broad-form negligence question following the Texas Pattern Jury Charges. See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: General Negligence and Intentional Personal Torts PJC 2.1, 2.4, 4.1 (2006).

B. Raised by the written pleadings and the evidence

1. Raised by the written pleadings?

LaGrone originally pleaded three theories of recovery against Sendero for damages incurred to the surface of the lands: nuisance, trespass, and negligence. (3) Although LaGrone pleaded negligence, there was no pleading of negligence per se. LaGrone nonetheless asserts on appeal that the pleading of general negligence in the original petition--which mentioned neither pits (4) nor a statutory or regulatory duty--"would encompass" the proposed instruction on the regulatory duty.

In addition to not having specifically pleaded negligence per se, LaGrone did not specify the proposed regulatory duty as a measure of ordinary care in its pleadings. When LaGrone first specifically identified the alleged duty owed by Sendero (in LaGrone's response to Sendero's amended motion for summary judgment), LaGrone did not raise a statutory or regulatory duty as an issue in controversy:

Defendant owed a duty to the Landowners, arising in two ways: (a) as a member of the public, not to intrude onto the Landowner's Property; and (b) not to exceed the scope of permissible use of the Property under that Lease . . . .

 

Our review of the pretrial pleadings in the record indicates that LaGrone made no further mention of pits, duties specific to pits, or statutes, rules, or regulations imposing duties.

2. Raised by the oral pleadings and argument?

Even if the issue was not raised by the written pleadings, when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Tex. R. Civ. P. 67. LaGrone asserts that the issue of the regulatory duty was a major focus of the trial. Our review of the record indicates that no specific Railroad Commission regulation was mentioned over the course of the trial, although references to the Railroad Commission and its rules were made in general terms.

During voir dire, LaGrone told the jury panel about the "law that governs" what Sendero was permitted to do and what it was prohibited from doing under, specifically, the lease and "just the law, common law of the State of Texas or certain codes." At trial, LaGrone asserted in its opening statement that the court would likely instruct the jury that negligence is "the failure to use ordinary care, failing to do that which a person of ordinary prudence would have done under the same or similar circumstance or doing that which a person of ordinary prudence would not have done under the same or similar circumstance." Later in opening statements, LaGrone told the jury that the court may instruct it that "failure to abide by a custom of the industry can be negligence." LaGrone also told the jury that

the rules require that those pits be closed at a certain time. Listen to the testimony about as when [sic] this pit got closed. And if they really want to talk about other operators in the area and compare themselves to it, see how long the other operators took to close any of their pits. Because it all goes back to using more of the land than is reasonably necessary.

 

Despite LaGrone's various previews to the jury regarding what LaGrone believed to be the standard of care, LaGrone neither told the jury that the evidence would show that the violation of a statute or regulation by Sendero would provide the standard of care nor told the jury that the court might give instructions that such a violation would provide that standard.

3. Raised by the evidence?

Testimony at trial lasted one and a half days. According to the testimony of Garth, Martha's husband (Garth was the manager of their property), the Sendero well was drilled in the "latter part of September-October of '03." David Porter, Sendero's co-owner, testified that drilling was complete in November 2003. Both Garth and Bruce Rampy, Sendero's field operations foreman, testified that the pit was not closed until the end of August 2005, almost two years after drilling was complete.

When given an opportunity to expound on the regulation of the pits, Garth gave this testimony:

Q. [by LaGrone's counsel] Well, you've been in the drilling business before. Aren't the pits supposed to be closed within a certain time?

 

A. [by Garth] I would think less than a year and a half to two years, yes, sir.

 

Q. There might be a state wide rule on that, reckon?

 

A. Might be. Should be, anyway.

 

LaGrone was slightly more specific when cross-examining Porter. Porter stated that in closing a pit, "first you have to take the water out. The Railroad Commission allows you to take -- as long as its [sic] fresh water of a certain quality, they allow that water to be taken out and pumped out onto a land like a land farming." LaGrone then asked:

Q. [by LaGrone's counsel] Okay. Good. So water is out of the pit. Did you see there was a Railroad Commission rule?

 

A. [by Porter] As I understand the Railroad Commission regulations, they want the water out of the pit.

 

Q. Before closing?

 

A. Correct.

 

Q. So springtime rain is really not a problem, is it?

 

A. It is if you're trying to take water out and it's coming in just as fast as you're taking it out.

 

Porter was then asked if Sendero did "ever make an application to the Railroad Commission to keep the reserve pit open," to which Porter replied that Sendero had not. Porter explained Sendero's fence-line policy (i.e., a policy regarding the surface owners' access to areas inside Sendero's fence, an area which would include the pit) as follows:

Our policy is that inside the fence, we're responsible. If something happens or we get in trouble with the Railroad Commission or with somebody else, they're going to look to us for what goes on inside that fence. . . . we're going to be the one that's held responsible by the Railroad Commission.

 

Our review of the record indicates no other testimony potentially supporting submission of the proposed instruction.

C. Analysis

A "party seeking to recover on the ground of negligence per se must plead a statutory violation." Daugherty v. S. Pac. Transp. Co., 772 S.W.2d 81, 83 (Tex. 1989). It is undisputed that LaGrone did not expressly plead a statutory or regulatory violation. LaGrone contends that it is entitled to the proposed instruction merely in support of the general negligence cause of action which it pled as a statement of the relevant law of duty applicable to the case. Although LaGrone presents no authority in support of this position, we are cognizant of two cases that have addressed the issue. Compare Hirsch v. Thames, No. 01-92-00703-CV, 1993 Tex. App. LEXIS 1362 (Tex. App.--Houston [1st Dist.] May 13, 1993, writ denied) (not designated for publication) (not entitled to statutory standard of care instruction without pleading negligence per se), and Waldon v. City of Longview, 855 S.W.2d 875, 877 (Tex. App.--Tyler 1993, no writ) (instruction on statutory standard of care acceptable despite not having pleaded negligence per se, since jury was not instructed that a violation of the statute equated with negligence).

We are persuaded that an instruction on the regulatory standard of care must be supported by pleadings giving notice of the proposed use of that regulation. To support submission of a jury question, the pleadings must give the opposing party fair and adequate notice of the facts under which the pleader relies so that the opposing party has sufficient notice and information to prepare his defense. Murray v. O & A Express, Inc., 630 S.W.2d 633, 636 (Tex. 1982). When a plaintiff claims a statutory violation, the

defendant in such a suit must frame his defense in terms of the recognized excuses for violation of a statute. Since these excuses must be affirmatively raised by the evidence, it is important that the party alleged to be negligent as a matter of law be informed prior to trial that the opposing party relies upon the statutory violation. Thus, a party relying upon a statutory violation should plead this reliance if he is to recover on that basis.

 

Id. (footnote omitted); see also Lively v. Carpet Servs., Inc., 904 S.W.2d 868, 873 n.7 (Tex. App.--Houston [1st Dist.] 1995, writ denied).

We find that LaGrone did not specify reliance on the proposed regulation as a basis for recovery in the pleadings or the evidence. LaGrone's questions to Garth concerning whether the pits were "supposed to be closed within a certain time" and whether "a state wide rule on that" existed were answered only equivocally and without reference to any particular governing rule. LaGrone's question to Porter regarding whether, once water is out of the pit, "there was a Railroad Commission rule" did not reference a particular rule, or even the particular part of the rule on which it later sought to rely. Although LaGrone asserted in its opening statement that "the rules require that those pits be closed at a certain time," LaGrone proceeded to explain this from the perspective of industry practices and reasonable use. A statute which provides a standard of ordinary care is inappropriately instructed. See Freudiger v. Keller, 104 S.W.3d 294, 297 (Tex. App.--Texarkana 2003, pet. denied). The effect of all of these references in the pleadings and the evidence is to demonstrate that LaGrone never raised the particular regulation with sufficient specificity to provide Sendero notice that it must defend against an allegation that there had been a violation of that regulation.

Compounding the problem of insufficient notice to Sendero supplied only by vague references to "rules" is that Rule 3.8, in its entirety, discusses and defines sixteen different types of pits associated with the drilling and production from an oil or gas well. See 16 Tex. Admin. Code 3.8(a)(1-16). The part of Rule 3.8 that LaGrone proposed to include within the instructions discusses only three of these pits (reserve pits, mud circulation pits, and fresh makeup water pits) although not even all of these kinds of pits were the subject of evidence at trial. Moreover, pits actually discussed at trial were not included in the proposed instruction. (5) "An instruction is proper only if it (1) assists the jury, (2) accurately states the law, and (3) finds support in the pleadings and evidence." Perez v. Lopez, 74 S.W.3d 60, 67 (Tex. App.--El Paso 2002, no pet.).

Additionally, we note that even had LaGrone pleaded the regulatory duty, LaGrone must still have presented evidence which connected a breach of the regulatory duty to the damages which had been claimed. The damages for which LaGrone sought recovery--an ugly, unseeded, eroding surface--must be included among the damages intended to be prevented by the statute. "The threshold questions in every negligence per se case are whether the plaintiff belongs to the class that the statute was intended to protect and whether the plaintiff's injury is of a type that the statute was designed to prevent." Perry v. S.N., 973 S.W.2d 301, 305 (Tex. 1998). (6)

Martha wanted the pits re-seeded. At trial, LaGrone claimed the pit needed to be graded and seeded. Garth testified that when it is filled in, the pit should be immediately seeded with grass and that Sendero had taken no such steps. Martha testified that the real problem with the mud pit is that despite its having been filled in already, it "needs to be put back like it was with grass and everything." Unfortunately, grading and seeding are not the standard provided in the regulation; (7)since the regulation is focused on water purity for the State of Texas, it has no provision for grading or seeding the surface for the benefit of the surface estate owner. LaGrone fails to show how its injury--a poorly graded and bare surface--is of the type that the requirements contained in Rule 3.8 were designed to prevent. See Tex. Nat. Res. Code Ann. 91.101 ("To prevent pollution of surface water or subsurface water in the state, the commission shall adopt and enforce rules . . . .").

Finally, we note that even if the issue had been tried by consent and that had the injury alleged to have been sustained was the type intended to be prevented, LaGrone failed to show how a breach of the regulatory duty to de-water, backfill, and compact the pit within the year mandated by Rule 3.8 proximately caused the damages claimed. The evidence indicates that Sendero did eventually fill the pit (albeit that it apparently was done in a manner which left an unsightly scar on the lands upon which it was once located); however, the evidence does not specify any damage proximately caused by the extra-regulatory delay in filling the pit. The closest evidence is that from Thomas, who implies that erosion on the property was related to a negligent filling of the pit. But we are cognizant that negligence in delaying the fill (a topic which was never discussed at all except in the acknowledgment by Sendero as to the time frame between completion of the drilling operations and the eventual filling of the pit) is different from negligence in executing the fill.

III. CONCLUSION

In sum, LaGrone did not raise the particular regulatory duty sought to be instructed in the pleadings or the evidence. The trial court did not abuse its discretion in refusing to instruct the jury on that duty. The point of error is overruled.

We affirm the judgment.

 

Bailey C. Moseley

Justice

 

Date Submitted: July 18, 2007

Date Decided: August 17, 2007

 

1. The Appellants' first names (Martha or Thomas) will be used when the reference is to the individual.

2. Though LaGrone phrases the issue as one of a statutory duty, it is, more accurately, a regulatory duty having the force of law. The instruction LaGrone sought stems from a Texas Railroad Commission rule. See 16 Tex. Admin. Code 3.8 (Tex. R.R. Comm'n, Water Protection), available at http://info.sos.state.tx.us/pls/pub/readtac$ext.viewtac. The Texas Natural Resource Code provides for the Railroad Commission to "adopt and enforce rules and orders." Tex. Nat. Res. Code Ann. 91.101 (Vernon Supp. 2006). Nonetheless, the rules established by the Railroad Commission have the force of law. See R.R. Comm'n v. WBD Oil & Gas Co., 104 S.W.3d 69, 75 (Tex. 2003); L & G Oil Co. v. R.R. Comm'n, 368 S.W.2d 187, 193 (Tex. 1963) ("Rules and orders of the Railroad Commission made under authority of a statute are considered under the same principles as if they were the acts of the Legislature . . . .").

3. Only the negligence theory was presented to the jury.

4. LaGrone did mention pits in its responses to Sendero's motion and amended motion for summary judgment, though in the context of its nuisance cause of action and making no mention of a particular statutory or regulatory duty. LaGrone's response to Sendero's motion for summary judgment stated: "The nuisance here arises . . . by creating and leaving uncovered an open pit for a long period of time." LaGrone asserted that "[o]nly after this suit was filed was the pit covered and any cleanup attempt made." LaGrone's response to Sendero's amended motion for summary judgment again asserted that Sendero left a "large pit uncovered."

5. The proposed instruction focuses on mud pits, also known as reserve pits. See 16 Tex. Admin. Code 3.8(a)(12). But the evidence shows there were several types of pits on the LaGrone property. Garth testified to a blowdown pit and mud pit. See 16 Tex. Admin. Code 3.8(a)(7), (12). Martha testified that she was primarily concerned with the mud pit. The contractor who testified as to the cost of repair stated that there was "some type of maybe a berm pit or something in that sort." (Emphasis added.) Porter testified that the site had a "flow back pit or flare pit." (Emphasis added.) See 16 Tex. Admin. Code 3.8(a)(8). Sendero's field manager testified to a return pit, a flare pit, and a working pit.

6. Sendero, citing Hicks v. Humble Oil and Refining Co., 970 S.W.2d 90 (Tex. App.--Houston [14th Dist.] 1998, pet. denied), asserted at oral argument that Rule 3.8 could not provide the standard of care because surface owners are not, for any purposes, among the class intended to be protected by Railroad Commission regulations. Sendero grossly misstated the Hicks holding and applicability to this case. See id. at 95; see also Mieth v. Ranchquest, Inc., 177 S.W.3d 296, 305 (Tex. App.--Houston [1st Dist.] 2005, no pet.) ("Rule 8 [3.8] clearly affords protection to the class of persons to which appellants belong, i.e., surface owners, against the hazard involved, i.e., pollution of surface and subsurface water.").

7. Also, it should be noted that the oil and gas lessee's estate is the dominant estate and the lessee has an implied grant, absent an express provision for payment, of free use of such part and so much of the premises as is reasonably necessary to effectuate the purposes of the lease, having due regard for the rights of the owner of the surface estate. Humble Oil & Ref. Co. v. Williams, 420 S.W.2d 133 (Tex. 1967); Brown v. Lundell, 162 Tex. 84, 344 S.W.2d 863 (1961); Warren Petroleum Corp. v. Monzingo, 157 Tex. 479, 304 S.W.2d 362 (1957); Warren Petroleum Corp. v. Martin, 153 Tex. 465, 271 S.W.2d 410 (1954). The rights implied from the grant are implied by law in all conveyances of the mineral estate and, absent an express limitation thereon, are not to be altered by evidence that the parties to a particular instrument of conveyance did not intend the legal consequences of the grant. Sun Oil Co. v. Whitaker, 483 S.W.2d 808, 811 (Tex. 1972). The oil and gas lease under which Sendero was operating provided for the payment of surface damages only as such damages would be inflicted on crops and growing timber.