Maebelle Yarbrough, Individually and as Trustee of the Darrell Yarbrough Testamentary Trust v. ELC Energy, LLC
12-15-00303-CV
| Tex. App. | May 31, 2017Background
- Maebelle Yarbrough (individually and as trustee) owns land in Nacogdoches County; ELC Energy claimed access rights under a 1980 mineral lease and a later farmout from successors in interest.
- ELC sought to enter the property in Feb 2015; Yarbrough objected and ELC sued for trespass to try title and related relief.
- ELC moved for summary judgment asserting it had access rights via a farmout from Musselman and Blevco; ELC amended pleadings and affidavits to reference a different farmout agreement shortly before the hearing.
- Yarbrough moved for a continuance (Rule 166a(g)) to conduct additional discovery about the changed pleadings and farmout documents; the trial court denied the continuance and granted ELC’s amended MSJ.
- Summary judgment evidence showed the Ben Irwin Gas Unit was declared in 1982, Acme Brick Well (within unit) was reclassified as a gas well and produced through Feb 2015, and a 2014 farmout (and extension) assigned access/development rights to ELC.
- The appellate court affirmed summary judgment except reversed and remanded as to Yarbrough in her capacity as Trustee for lack of summary-judgment proof of trustee liability, and found no abuse in denying continuance or in other evidentiary rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion for continuance (need for discovery) | Changes in ELC’s pleadings/farmout created surprise; needs time to obtain discovery from Musselman, Blevco, Goldsmith, Atlantis | ELC argued amendments tracked its MSJ and were timely; Yarbrough had not shown diligence or specific discovery needed | Trial court did not abuse discretion: Yarbrough failed to specify discovery sought, show due diligence, or get rulings on motions to compel; denial affirmed |
| Right to enter / lease perpetuation (production) | Lease expired for want of production; Ben Irwin well abandonment means no perpetuation | ELC showed pooling, Ben Irwin Gas Unit, and continuous gas production from Acme Brick Well through Feb 2015; farmout gave ELC access | MSJ proper as to ELC’s right to access when suit filed: Acme Brick gas production perpetuated the pooled lease; summary judgment on access affirmed |
| Affidavit contradictions (Gordon) | Gordon’s amended affidavit contradicts earlier affidavit and creates fact issue (interested witness) | Change reflected correction to identify correct farmout; earlier inclusion was mistake and does not negate later farmout or create genuine fact issue | No genuine issue: amended affidavit corrects earlier mistake; evidence considered and not contradictory so MSJ reliance on Gordon proper |
| Exclusion of late-produced evidence (Rule 193.6) | Documents showing lack of production after Feb 2015 should be admitted; ELC waived motion to compel so no supplement duty | ELC argued Yarbrough failed to timely supplement and did not show good cause or lack of unfair surprise | Trial court did not abuse discretion excluding the late-disclosed evidence; Yarbrough failed to show good cause or lack of prejudice |
| Summary judgment against cross-defendants and trustee liability | Court improperly granted judgment against cross-defendants who did not move; no evidence Yarbrough was liable as Trustee | ELC asserted successors’ interests and that Yarbrough (as trustee) succeeded to interest under will/trust (but cited no record) | Grant of judgment to non-movant cross-defendants was error but Yarbrough waived harm argument; summary judgment against Yarbrough as Trustee reversed and remanded for lack of proof of trustee liability |
Key Cases Cited
- BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) (standards for review of summary judgment and continuance practice)
- Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004) (factors for continuance to obtain discovery)
- D.R. Horton–Tex., Ltd. v. Savannah Props. Assocs., 416 S.W.3d 217 (Tex. App.–Fort Worth 2013) (continuance / affidavit specificity)
- Trico Techs. Corp. v. Montiel, 949 S.W.2d 308 (Tex. 1997) (uncontroverted affidavit of interested witness standard)
- Fort Brown Villas III Condo. Ass’n, Inc. v. Gillenwater, 285 S.W.3d 879 (Tex. 2009) (Rule 193.6 application to summary judgment)
- Martin v. Amerman, 133 S.W.3d 262 (Tex. 2004) (nature and purpose of trespass-to-try-title actions)
- Lehmann v. Har–Con Corp., 39 S.W.3d 191 (Tex. 2001) (judgment cannot grant more relief than requested)
- G&H Towing Co. v. Magee, 347 S.W.3d 293 (Tex. 2011) (harmless-error analysis when MSJ disposes claims not addressed in motion)