Russell S. Christianson v. Pearl Emerson--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-93-049-CV

RUSSELL S. CHRISTIANSON,

Appellant

v.

PEARL EMERSON,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 92-00-01779-CV

O P I N I O N

Russell Christianson appeals the granting of a summary judgment in favor of Pearl Emerson terminating a lease under which Christianson claimed a leasehold interest. He argues that the court abused its discretion in denying his motion for continuance and that the court erred in entering the summary judgment. We will affirm the judgment.

PROCEDURAL HISTORY

Emerson sued to terminate a mineral lease dated October 15, 1963, covering 105 acres in Navarro County. The lease provided for a ten-year primary term "and as long thereafter" as oil or gas was produced from the land. Emerson alleged that production had ceased and that the lease had terminated by its own terms.

Emerson filed a motion for summary judgment. Attached to her motion were deposition excerpts and Railroad Commission "P-1" reports. Emerson relied on these documents to show the absence of production during specific periods of 1987, 1990, and 1991. Christianson filed a response // to the motion relying on the force majeure clause of the lease. Christianson's attorney attached an affidavit alleging that he had "ordered and instructed [Christianson's representative] to get the Railroad Commission records in regard to wells that are subject to this lawsuit." He asked the court to continue the matter to allow time to procure affidavits. See Tex. R. Civ. P. 166a(g). However, the court heard and granted Emerson's motion for summary judgment.

MOTION FOR CONTINUANCE

In his first point, Christianson complains that the court erred in denying his motion for continuance. Citing Rule 166a(g), he asked that the court continue the matter to permit him to obtain necessary affidavits. Id. The motion for continuance is in the transcript before us, but no order denying the motion is in the transcript nor does the statement of facts reflect a ruling by the court. The court denied the motion by proceeding with the summary judgment hearing.

The granting of a request for a continuance of a summary judgment hearing is within the discretion of the court. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). The court's exercise of discretion will not be disturbed on appeal unless the record discloses an abuse. Id. Here, the record does not contain a written ruling nor does it contain any testimony from a hearing on the motion. Christianson bears the burden of seeing that a sufficient record is presented to show error requiring reversal. See Tex. R. App. P. 50(d). We do not have a sufficient record before us to determine whether the court abused its discretion. Id.; State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988). We overrule point one.

MOTION FOR SUMMARY JUDGMENT

In his second point, Christianson complains that the court erred in granting Emerson's motion for summary judgment. In reviewing the summary judgment, we must determine whether Emerson met her burden by establishing that no genuine issue of material fact exists. See Nixon v. Mr. Property Management, 690 S.W.2d 546, 548 (Tex. 1985); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). She bears the burden of proving her entitlement to the summary judgment as a matter of law. See Nixon, 690 S.W.2d at 548; Roskey v. Texas Health Facilities Comm'n, 639 S.W.2d 302, 303 (Tex. 1982) (per curiam); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). We must view the evidence in the light most favorable to Christianson. See Great American, 391 S.W.2d at 47. We will accept as true all evidence favorable to Christianson. See Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex. 1984); Nixon, 690 S.W.2d at 549. Moreover, we must indulge every reasonable inference in Christianson's favor and resolve all doubts as to the existence of a genuine issue of material fact in his favor. See id. We will consider evidence that favors Emerson only if it is uncontroverted. See Great Am., 391 S.W.2d at 47.

TERMINATION OF LEASE

The habendum clause provided that the lease would remain in force for ten years and as long thereafter as oil, gas, or other minerals were produced from the land. "Produced" in this connection means "production in paying quantities." See Gulf Oil Corp. v. Reid, 161 Tex. 51, 337 S.W.2d 267, 269 (1960); Garcia v. King, 139 Tex. 578, 164 S.W.2d 509 (1942). A marginal well is producing in paying quantities if, under all relevant circumstances, a reasonably prudent operator would, for the purpose of making a profit and not merely for speculation, continue to operate a well in the manner in which the well in question was operated. Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684, 691 (1959). If production of oil completely ceases after the expiration of the primary term, the lease automatically terminates. See Watson v. Rochmill, 137 Tex. 565, 155 S.W.2d 783, 784 (1941).

Emerson's motion for summary judgment alleged that production "ceased" on the property from January through May of 1987 and that "no oil was produced" during 1990 and 1991. Emerson's summary judgment evidence consists of P-1 production reports filed by Woodstock with the Railroad Commission in 1987, 1990, and 1991; excerpts from the depositions of E.A. Riley, president of Woodstock; and excerpts from the deposition of Don Landrum, agent for Christianson.

force majeure

The P-1 reports show no production from the property in January, February, March, April, or May of 1987. Although there was no production during these months, Riley suggested in his deposition testimony that the force majeure clause of the lease excused the cessation. Riley testified that Woodstock was under a Railroad Commission pipeline severance order during this time period and contended that the force majeure clause of the lease excused Woodstock's non-performance.

The force majeure clause in the lease provides:

11. If any operation permitted or required hereunder, or the performance by Lessee of any covenant, agreement or requirement hereof is delayed or interrupted directly or indirectly by any past or future acts, orders, regulations or requirements of the Government of the United States or of any state or other governmental body, or any agency, officer, representative or authority of any of them, or because of delay or inability [to] get materials, labor, equipment or supplies, or on account of any other similar or dissimilar cause beyond the control of Lessee, the period of such delay or interruption shall not be counted against the Lessee, and the primary term of this lease shall automatically be extended after the expiration of the primary term set forth in Section 2 above, so long as the cause or causes of such delays or interruptions continue and for a period of 30 days thereafter and such extended term shall constitute and shall be considered for the purposes of this lease as a part of the primary term hereof. The provisions of Section 5 hereof relating to the payment of delay rentals shall in all things be applicable to the primary term as extended hereby just as if such extended term were a part of the original primary term in Section 2 hereof. The Lessee shall not be liable to Lessor in damages for failure to perform any operation permitted or required hereunder or to comply with any covenant, agreement or requirement hereof during the time Lessee is relieved from the obligations to comply with such covenants, agreements or requirements.

Force majeure clauses protect the parties in the event that a part of the contract cannot be performed "due to causes which are outside the control of the parties and could not be avoided by exercise of due care." Black's Law Dictionary 581 (5th ed. 1979).

Force majeure is an affirmative defense. A defendant cannot avoid a summary judgment by merely pleading an affirmative defense. A plaintiff who conclusively establishes the absence of disputed fact issues will not be prevented from obtaining summary judgment because the defendant merely pleaded an affirmative defense. Nicholson v. Memorial Hosp. System, 722 S.W.2d 746, 749 (Tex. App. Houston [14th Dist.] 1986, writ ref'd n.r.e.). An affirmative defense will prevent the granting of a summary judgment only if each element of the affirmative defense is raised by summary-judgment evidence that would be admissible upon the trial of the case. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). Emerson's summary-judgment proof clearly showed that there was no production for five months in 1987. Christianson failed to provide summary-judgment evidence to raise the elements of his affirmative defense. See id. We overrule point two.

We affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed October 20, 1993

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