Santa Fe Minerals, Inc. and other mineral lessees/working interest owners (collectively “Santa Fe” or “the defendants”) were enjoying production from the Guymon-Hugoton field under several virtually identical oil and gas leases executed between 1937 and 1950. In 1989 Oklahoma Hugoton Corporation (Hugoton) approached the lessors of the Santa Fe leases, or their successors, and paid each for what is known as a top lease, an oil and gas lease to take effect only if the pre-existing lease should expire or be terminated. In the process Hugoton obtained from each lessor his or her authority to take the necessary steps to bring suit, in the name of the lessor, but at the expense of Hugoton,
As a result ten cases were filed in the District Court of Texas County by the mineral owners/lessors to quiet title to their mineral interests — and to cancel the base leases owned by Santa Fe. The gravamen of each suit was that Santa Fe had, from time to time, withheld production for a period of more than sixty days, and each lease contained a “cessation of production” clause providing for cancellation if production ceased for more than sixty days without commencement of drilling operations.
The defendants are successors in title to the rights in the base leases. One of the defendants, Santa Fe Minerals, Inc. is a defendant in each of the ten actions. Some of the defendants asserted counterclaims against the plaintiffs to quiet title to the base leases in favor of the defendants.
In each of the ten cases Santa Fe filed a third-party claim against third-party defendant Hugoton. Santa Fe’s claims were based upon allegations of tortious interference with contract, slander of title, champerty and maintenance. In two cases (C-90-16; C-90-20) Jake L. Hamon, Don 0. Chappell, and Hamon Operating Co. asserted a similar third party claim against Hugoton. In one case (C-90-19) defendants Helen K. Elrod and C.D. Long filed a like claim against Hugoton.
The ten cases were consolidated for a non-jury trial. The trial court rejected the plaintiffs’ argument that the cessation of production clause terminated the base leases, found the defendants’ base leases to be “presently existing”, and quieted title to them in the defendants. The court also rendered judgment cancelling and setting aside the toр leases.
On the defendants’ (third-party plaintiffs’) claims for tortious interference with contract the trial court found in favor of the third-party plaintiffs. It awarded a judgment in the amount of $1.00 each in favor Santa Fe, Jake L. Hamon, Don 0. Chappell, Hamon Operating Company, C.D. Long and Helen K. Elrod against Hugoton. On the defendants’ claims against Hugoton alleging slander of title and champerty and maintenance judgment was rendered in favor of Hugoton.
The judgment in these ten cases resulted in twenty appeals. We consolidated the twenty appeals under surviving Supreme Court No. 77,971. 2 We granted a motion to retain the cоnsolidated appeal. We deny the motions for oral argument.
THE CESSATION OF PRODUCTION CLAUSE
The primary issue in this appeal is the application of the sixty-day cessation of production clause, and whether it controls the habendum clause in the lease. The ha-bendum clause in the base leases provided for a primary lease term of ten years and as long thereafter as oil, gas, casinghead gas or any of them is produced. 3 The cessation of production clause in the base leases provided for cessation of the lease after the expiration of the primary term if production on leased premises failed, unless the lessee resumed operations for a well within sixty days of the cessation.
This precise issue was resolved in
Pack v. Santa Fe Minerals,
Once
Pack
was resolved we requested briefs on the application of
Pack
to this appeal. The parties responded and reeog-
CANCELLATION OF THE TOP LEASES
The trial court cancelled and set aside the top leases. A top lease is where the lease taken is subject to a pre-existing lease that has not expired when the second lease was taken.
French Energy, Inc. v. Alexander,
The top lease states that it vests in the top lessee the mineral owner’s reversionary interest under the base lease. It further states that possession under the top lease shall vest upon release of the base lease or upon a final an unappealable judgment that the base lease has terminated. The top lease also states that if this possession does not vest then the reversionary interest and top lease granted would terminate “within ten (10) years from the date of this Agreement.”
No party has argued that the top lease grants, or was intended to grant, a reversion-ary interest independent of the adjudication of the base leases in this prоceeding. On appeal all parties, including Hugoton, have construed the validity and vesting of the top leases as dependent upon whether the base leases were held invalid in this proceeding. Hugoton states unequivocally that the “top leases have never taken affect [sic].” We are asked in this case to construe the validity of top leases where all parties have interpreted those leases as contingent upon a judicial determination in this suit on the validity of the base leases. We are not called upon to construe the validity of the top leases in any othеr context. 4 The base leases are held to be valid, and the trial court’s judgment in cancelling the top leases is final, no party having asked us on appeal to let the top leases survive our declaration of the base leases’ vitality.
SLANDER OF TITLE
Santa Fe appeals the trial court’s judgment denying its claim for slander of title. Hugoton relied upon the contingent nature of the top leases to show that slander of title did not occur. Hugoton argued that if the base leases were valid then third parties could merely ignore the top leases. We need not examine this theory, because Hugo-ton also argued that it had an action brought in good faith to remove a cloud upon the mineral owner’s interests arising from the expired base leases. It argued that its good faith was shown, in that it did not bring the suit herein until after a trial court judgment against Santa Fe in a similar suit. The trial court concluded that the elements to a slander of title cause of action were not present.
The elements of an action for slander of title are: “(1) the uttering and publishing of the slanderous words; (2) that they were false; (3) that they were malicious; (4) that [the plaintiff] sustained special damage thereby; and (5) that [the plaintiff] possessed an estatе or interest in the property slandered.”
James Energy Co. v. HCG Energy Corp.,
In
Pack v. Santa Fe Minerals, supra,
we stated that the question presented in that ease was one of first impression.
Id.
TORTIOUS INTERFERENCE WITH CONTRACT
The trial judge made a finding that Hugoton intentionally interfered with the contracts (leases) between the mineral owners and their lessees. However, the trial judge also concluded that Hugoton was performing an important service for the mineral owners and awarded оnly a nominal amount. We reverse the judgment that Hugoton intentionally interfered with the contracts and business relations of the defendants.
We need not examine in detail the particular elements of a cause of action based upon interference with contract.
6
Simply, Hugoton cannot be liable for wrongfully interfering with a contract if it was acting in a representative capacity for a party to that contract. This concept was explained in
Ray v. American Nat. Bank & Trust Co.,
Ray contends that Bank wrongfully interfered with her employment contract with Young, and claims a right to punitive damages as a result. Bank, however, was at all times acting on behalf of Young. Bank could not wrongfully interfere with a contract concerning which it was acting in a representative capacity for a party. A cause of action for wrongful interference with contract can arise only when one who is not a party to a contract interferes with that contract by convincing one of the contracting parties to breach its terms. The cause of action sounds in tort. Mac Adjustment, Inc. v. Property Loss Research Bureau,595 P.2d 427 (Okla., 1979). Bank was a party to the contract, in its representative capacity. Thus, we hold that the trial court properly granted summary judgment to Bank on this issue.
Id.
If Hugoton wаs acting as agent for the mineral owners in the litigation with the base lessees the defendants’ claim for interference with contract is, as a matter of law, without foundation.
On appeal Santa Fe points to testimony by two mineral owners, and argues that Hugo-ton filed suits without express authorization from the owners, and that some of the owners were of the opinion that they could not control the litigation. The testimony is not sufficient to strip Hugoton of its status as agent for the mineral owners for the purpose of the leases and the litigation.
The mineral owners received a letter explaining Hugoton’s position, with a lease and agreement for signature. 7 The second paragraph on the first page of the letter to the mineral owners states that:
Our client has authorized us to extend to mineral owners in the Section the following offer which shall remain open for a period of twenty (20) days from the date of this letter:
1. A legal action will be filed on the mineral owners’ behalf seeking a judgment that the existing lease has terminated. Our client will pay 100% of all legal, brokerage and engineering costs associated with the legal action;
The first page of the agreement contains the following:
Lessor hereby appoints Lessee [Hugoton] as their special agent with full and сomplete power to take all necessary steps to obtain a release or judicial termination of the above described Oil and Gas Lease ... Said power of agency shall include ... the power to hire and retain legal counsel to file the litigation in the name of the Lessor; and the power to pursue such legal action in the courts of the State of Oklahoma in the name of and on behalf of the Lessor, (emphasis added)
The testimony shows that each of the mineral owners received the letter and signed the agreement. In one instance the mineral owners signed a limited power of attorney containing language similar to that in the agreement. Some of the mineral owners obtained little or no advice on whether to sign the agreement, while others consulted lawyers or friends. Some of the mineral owners said that they either ignored the provisions in the agreement appointing Hugoton as agent, or simply did not understand that a suit would be filed on their behalf.
One mineral owner signed the agreement for the amount paid by Hugoton although he was of the opinion that Hugoton would be unsuccessful. Another mineral owner testified .that she was motivated to sign the agreement in hopes of obtaining the higher royalty fraction in the top lease, additional drilling and more production, and that she knew that she was authorizing legal proceedings to attack the base lease. She indicated that the agreement for the top lessee to absorb the litigation costs made it an attractive offer for her. Other witnesses also testified that they knew that by signing the agreement they were authorizing the top lessee to initiate litigation in their names, and that they could not have afforded to bring the action as individuals.
Some mineral owners testified that if they had not been approached by Hugoton they would not have filed suit, and that their interests would not have supported the litigatiоn costs. Some stated that they did not know whether Santa Fe had violated their leases, and they had left that determination to Hugoton. The complaints of the mineral owners against the base lessees were general in nature: they desired increased production, and a bigger royalty. In short, they wanted more money. Hugoton appeared on the scene and told them that they might be entitled to more.
We conclude that Hugoton was acting as agent for the mineral owners in revisiting their contractual relationship with the base lessees. The defendants’ claims against Hu-goton for interference with contract cannot prevail, Ray v. American Nat. Bank & Trust Co., supra, and the one-dollar judgments against Hugoton are reversed.
CHAMPERTY AND MAINTENANCE
Santa Fe and some of the other defendants filed third-party claims against Hugoton alleging champerty and maintenance. The trial court granted judgment in favor of Hugo-ton on these claims. The defendants (third-party plaintiffs) appealed this disposition.
Champerty is an officious in-termeddling in a suit by a stranger, by maintaining or assisting either party with money or otherwise to prosecute or defend it, and dividing the proceeds obtained in the suit between the party and the stranger.
Mitchell v. Amerada Hess Corp.,
In
Lott v. Kees,
Hugoton points to the language of the trial judge in this case. He concluded that Hugo-ton was “a big benefit to the mineral owners” by “policing the oil companies” and keeping them honest. The trial judge concluded that the threat of many small mineral owners banding together with litigation support from companies like Hugoton insured that the terms of their base leases would be fulfilled. The trial court also concluded that this threat had the effect of helping the mineral owners obtain higher royalties and more income from their leases.
Santa Fe argues that allowing this type of litigation support fosters unnecessary litigation and increаsed costs to the mineral lessees. In sum, Santa Fe asks for a champerty rale that would prohibit mineral owners from obtaining litigation assistance from top lessees in challenges to the continued validity of base leases.
This State has a strong public policy against the forfeiture of leases.
Stewart v. Amerada Hess Corp.,
Public policy also favors allowing a party to litigate a matter of first impression. Dotson v. Rainbolt, supra. We agree with the trial court that in this case Hugoton served an important interest of the mineral owners in having their first impression case heard in a court of law. The trial court’s denial of the third party claims of champerty is supported by the evidence and circumstances in this case.
THE IMPLIED COVENANT TO MARKET
During the appeal Hugoton requested that this cause be remanded to the trial court for the purpose of taking testimony on a claim based upon breach of the implied covenant to market. This issue was not raised in the trial court. A party cannot raise new non-jurisdictional claims or defenses on appeal. In
Union Texas v. Corporation Commission,
COSTS
Appellee Kaiser-Francis Oil Company, a defendant (Kaiser-Francis) argues that an award of costs pursuant to 12 O.S.1991 § 928 and 942 is mandatory. It seeks its costs incurred in the trial court and on appeal. On appeal Hugoton has characterized its trial court suits as having been to quiet title, and this is not disputed by the defendants. For the purpose of Appellee’s request for costs we assume that characterization is correct.
A quiet title action may be used as an equitable proceeding to determine ownership of oil and gas lease or mineral rights.
Crockett v. McKenzie, 867
P.2d 463 (Okla.1994);
Atlantic Richfield Co. v. Tomlinson,
We have explained that in an action to quiet title, being one in equity, costs are taxed pursuant to 12 O.S. § 930.
Wheeler v. Benson-Taylor, Inc.,
In other actions, the court may award and tax costs, and apportion the same between the parties on the same or adverse sides, as in its discretion it may think right and equitable.
12 O.S.1991 § 930.
This view of applying § 930 to quiet title proceedings is consistent with our opinion in
Sinclair Oil & Gas Company v. Bishop,
Costs may be either “of course” (12 O.S.1991 § 928) or equitable litigation expenses (§ 930).
Fleet v. Sanguine, Ltd.,
We affirm the judgment of the trial court upholding the validity of the defendants’ base leases. We affirm its judgment cancelling the top leases. We reverse the judgment of the trial court that Hugoton intentionally interfered with the contractual relations of the defendants. We affirm its judgment in favor of Hugoton on defendants’ claims against Hugoton for slander of title and champerty and maintenance. The motion of Kaiser-Francis Oil Company for costs is denied.
APPENDIX
APPEAL STYLE
77.973 J.D. Voiles and Esther E. Voiles, Husband and Wife; and Douglas Blaekmer Voiles, Appellants, v. Santa Fe Minerals, Inc., a Delaware corporation; Southland Royalty Co., a Delaware corporation; and Deck Oil Co., an Oklahoma corporation, Appellees, v. Oklahoma Hugoton Corporation, Appellant.
77.974 Dempsey Noble and Bernice Noble, Husband and Wife; Norma Taggert a/ls/a Joanne Taggert; et al., Appellants, v. Santa Fe Minerals, Inc., a Delaware corporation; and Amoco Production Co., a Delaware corporation, Appellees, v. Oklahoma Hugoton Corporation, Appellant.
77.975 Dempsey Noble and Bernice Noble, Husband and Wife; Norma Tаggert a/k/a Joanne Taggert; et al., Appellants, v. Santa Fe Minerals, Inc., a Delaware corporation; and Amoco Production Co., a Delaware corporation, Appellees, v. Oklahoma Hugoton Corporation, Appellant.
77,977 Mildred Nash Daily, by Barbara Jean McClellan, Attorney-in-Fact; and Howard Clark Nash, Appellants, v. Santa Fe Minerals, Inc., a Delaware corporation; South-land Royalty Co., a Delaware corporation; and Deck Oil Co., an Oklahoma corporation, Appellees, v. Oklahoma Hugoton Corporation, Appellant.
77.980 Tjuana Bernice Massa, Appellant, v. Santa Fe Minerals, Inc., a Delaware corporation; Southland Royalty Co., a Delaware corporation; Helen K. Elrod; and C.D. Long, Ap-pellees, v. Oklahoma Hugoton Corporation, Appellant.
77.981 Mildred Nash Daily, by Barbara Jean McClellan, Attorney-in-Fact; and Howard Clark Nash, Appellants, v. Santa Fe Minerals, Inc., a Delaware corporation; South
APPEAL STYLE
land Royalty Co., a Delaware corporation; and Deck Oil Co., an Oklahoma corporation, Appellees, v. Oklahoma Hugoton Corporation, Appellant.
77.982 Viola Arlene Nickel, A.H. Schaapveld, Jess Littlе, et al., Appellants, v. Santa Fe Minerals, Inc., a Delaware corporation, B.P. Exploration, Inc., et al., Appellees, v. Oklahoma Hugoton Corporation, Appellant.
77.983 Milton and Mary E. Galliart, Husband and Wife; J.D. and Esther Elmina Voiles, husband and wife; et al., Appellants, v. Santa Fe Minerals, Inc., a Delaware corporation; Kaiser-Francis Oil Co., a Delaware corporation; et al., Appellees v. Oklahoma Hugo-ton Corporation, Appellant.
77.984 Viola Arlene Nickel, A.H. Schaapveld, Jess Little, et al., Appellants, v. Santa Fe Minerals, Inc., a Delaware corporation, B.P. Exploration, Inc., et al., Appellees, v. Oklahoma Hugoton Corporation, Appellant.
77.985 Milton and Mary E. Galliart, Husband and Wife; J.D. and Esther Elmina Voiles, husband and wife; et al, Appellants, v. Santa Fe Minerals, Inc., a Delaware corporation; Kaiser-Francis Oil Co., a Delaware corporation; et al., Appellees v. Oklahoma Hugo-ton Corporation, Appellant.
77.986 Betty J. Hoeme, Larry 0. Hoeme, Deborah C. Hoeme, et al., Appellants, v. Santa Fe Minerals, Inc., a Delaware corporation, Southland Royalty Co., a Delaware corporation, Mapco Oñ & Gas Co., a Delaware corporation, and Deck Oil Co., an Oklahoma corporation, Appellees, v. Oklahoma Hugo-ton Corporation, Appellant.
77.987 Gleaves L. Stallard and Umburta Stallard, Appellants, v. Santa Fe Minerals, Inc., a Delaware corporation; and Phillips Petroleum Company, a Delaware corporation, Ap-pellees, v. Oklahoma Hugoton Corporation, Appellant.
77.988 Betty J. Hoeme, Larry 0. Hoeme, Deborah C. Hoeme, et al., Appellants, v. Santa Fe Minerals, Inc., a Delaware corporation, Southland Royalty Co., a Delaware corporation, Mapco Oil & Gas Co., a Delaware corporation, and Deck Oil Co., an Oklahoma corporation, Appellees, v. Oklahoma Hugo-ton Corporation, Appellant.
77.989 Tjuana Bernice Massa, Appellant, v. Santa Fe Minerals, Inc., a Delaware corporation; Southland Royalty Co., a Delaware corporation; Helen K. Elrod; and C.D. Long, Ap-pellees, v. Oklahoma Hugoton Corporation, Appellant.
77.990 Gleaves L. Stallard and Umburta Stallard, Appellants, v. Santa Fe Minerals, Inc., a Delaware corporation; and Phillips Petroleum Company, a Delaware corporation, Ap-pellees, v. Oklahoma Hugoton Corporation, Appellant.
77.991 Pete E. Pauls and Leona Pauls, Husband and Wife; Raymond Peck and Orlene Peck, Husband and Wife, et al., Appellants, v. Santa Fe Minerals, Inc., a Delaware corpo
ration, Frontier Fuels, Inc., a Delaware corporation, et al., Appellees, v. Oklahoma Hu-goton Corporation, Appellant.
77.992 Pete E. Pauls and Leona Pauls, Husband and Wife; Raymond Peck and Orlene Peck, Husband and Wife, et al., Appellants, v. Santa Fe Minerals, Inc., a Delaware corporation, Frontier Fuels, Inc., a Delaware corporation, et al., Appellees, v. Oklahoma Hu-goton Corporation, Appellant.
77.993 Larry Lee Kauffman, Roy Edwin Kauff-man, Glenn Allen Kauffman, and- Esther Wallace, Appellants, v. Santa Fe Minerals, Inc., a Delaware corporation, Southland Royalty Co., a Delaware corporation, and Deck Oil Co., an Oklahoma corporation, Ap-pellees, v. Oklahoma Hugoton Corporation, Appellant.
77.994 Larry Lee Kauffman, Roy Edwin Kauff-man, Glenn Allen Kauffman, and Esther Wallace, Appellants, v. Santa Fe Minerals, Inc., a Delaware corporation, Southland Royalty Co., a Delaware corporation, and Deck Oil Co., an Oklahoma cоrporation, Ap-pellees, v. Oklahoma Hugoton Corporation, Appellant.
Notes
. The Appendix lists the 19 appeals consolidated with the surviving appeal Sup.Ct. No. 77,971.
. In one of the leases the clause provided "... as long thereafter as oil, gas, casinghead gas, cas-inghead gasoline, or any of them is or can be produced.” This different language has no effect on the result in this case.
.
Cf. Nantt v. Puckett Energy Co.,
. In
Dotson
we construed the statutory language of "without substantial merit” found in
.
In
Mac Adjustment, Inc. v. Property Loss Research Bureau,
.The letter was from Snyder-Fullbright Company. The parties agree that Snyder-Fullbright was acting on behalf of Hugoton.
. See 21 O.S.1991 §§ 547, 548. None of the appellate briefs cite these statutes and we are not called upon by the parties to construe or apply these statutes in this controversy.
. In
Walden v. Hughes,