NO. 07-01-0281 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A MAY 29, 2002

______________________________ J. EV ETTS H ALEY , JR., AS TR USTE E OF TH E NITA STEWART HA LEY TRUS T, AND AS INDEPENDENT EXECUTOR OF THE ESTAT E OF J. EVETT S HALEY, APP ELLA NT V. GPM GAS CORPORATION , APPELLEE

_________________________________ FROM THE 223 RD DISTRICT COURT OF GRAY COUNTY; NO. 30,715; HON ORABLE LEE WATERS, JUD GE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. Bythis appeal following a jury t rial, appell ant J. Evetts Haley, Jr., as Trusteeof the Nita Stewart Haley Trust, and as Independent Ex ecutor of the Es tate of J. Evetts Haley, deceased (Haley) presents fi ve issue s (restated in our analysis) com plaining of the judgm entrendered tha t he take nothing on his action against GPM Ga s Corporation and1 1. W hether the interpretation of an unam biguous surface lease is a question of law for the court? Whether a dispute over the scope of a surface lease is a question of law for the court w hen the conduct of t he parties to the lease is undisputed? 2. W hether GPM exceeded t he scope of a gas booster station surface lease by erecting a 180' radio com munications tower to rela y inf orm atio n fr

om ove r 20 0 wells (located as far

as 45 m iles away f

romthetow

er) , w hen 98% of t hos e wells ar e not connected to or served by the gas booste r station? 3. W hether a surface lease with an indefinite term is a ten anc y at w ill te rm inab le at the w ill of either the lessor or lessee? 4. W hether the Di strict C ourt erred by failing to sub m it a quest ion to thejur y regarding GP M’ s tr

esp asson t he H aley

ran ch in con nec

tion w it h the construction and m aintenance of theradio com m unicationstower? 5. W hether the District Court’s ex clusion of expert and lay test imony regarding the scope of the lease con flicts with th e Distri ctCourt’s de cision to submit the question of lease interpretation to the jury.

2 Paragraph four of the l ease provided that the lease w as assignable and that its pro vis ionsw ould extend tothe parties to the lease, the ir hei rs, successors and assi gns. Now, H aley is the lessor and GPM is the lessee. 2 granting relief in favor of GPM concerning a five-acre surface lease. 1 Based on the
ra ti on al e e xp re ss ed he re i n, we a ff i rm.
On July 11, 1956, Vera D ial Dickey, as lessor, executed a six page written le ase covering the surface of a f ive acre tract out of S ection 50, Block 25, H& GNRR Co. Survey, GrayCounty, Texas to Phill ips Petrol eum Com pany, as lessee. 2 As m aterial here, paragraph 1 of the lease provides
Lessor does hereby lease and let to Lesse e, to usefor any lawful purposes in connection with theerection, m aintenance, operation and repair of a gas booster station and other appurtenances an d fa cilit ies u sef ul or pro per in connection with gas pipe lines (but the uses to be m ade bylessee shall not include the erection or use of any dw ellings) . . . . (Em phasis ad ded).3 Haley does not contend that th e annual rentals of $250.00 have not bee n tim ely paid each year in accordance w ith paragraph 2 of the lease. 3 Paragraph 2 of the lease provi des:

Thislease shall be for a period of one (1) yea r fr om this date, h ere in called “primary te rm”; prov ided, however, that Lessee, its succes sors and assigns, at their option, ma y extend and continue this leas e in effect for successive periods of one (1) ye ar each thereaf ter indefi

nitely and perpetually by pay m ent of a nnu al re nta ls as hereinafter provided. In order to continue this lea se in force after the ex piration of the primary term , Lessee sha ll pay or tender tothe Les sor on o r before one yea r after this dat e the sum of Tw

o Hundr ed Fifty D ollars ($250.00) as advance annu al rental, and Lessee shall co nti nue to p ay said s um of Tw o Hundr ed Fifty D ollars ($250.00) as advance annual rental on or prior to th e an niversary date of thislease for each and any year s o long as Lessee desires to cont inue this lease in force. (Em pha sis added). The lease wa s recorded in the Gray County recordsand when Haley purch ased the land in 1986, GPM w as operating a gas booster sta tion and o the r appurtenance s on the leased premises. 3
Afte r Haley learned that GPM planned to construct a radio repeater tow er on the leased premise s, he w rot e GPM on Apri l 2, 1 996, an d inq uir ed abo ut it s pla ns. By subsequent

letters, Haley expres sed his position that the lease did not authori ze the constructio n of the tower. W hen efforts to arr ive at a consensus failed, GPM proceeded with the construction of arad io re pea ter tow er in 199 6 on theleas ed p rem isesfor thesole purpos e of re ceiving and relaying to GPM’s off ice radio signals transmitting gas
meas urement

information fromelectronic flow m easurem ent m eters installed at various4

w ell heads and central points of delivery of gas in the area to enhance the operation of its gas gathering system and pipe lines in the area. Contending that con str uct ion o f th e ra dio tower was not

authorized by the lease and the use and m aintenance of the tow er c onstituted a trespass, H aley filed his origi nal petition in September 1997, conte ndin g thatbecause the lease was a “tenancy at will” he had terminated the l ease and by which he sought dam ages for trespa ss, breach o f contr act, an d other r

elief. By

its answ

er, among other thin gs, GPM contended that thelease was not a “tenancy at w ill,” and sought
a declaratory judgm ent that the lease rem ained in force and effect, free from interfer ence by Haley.
After consideri ng GPM’s mo tion for sum mary judgm ent on May 11 , 1998, the trial court signe d its order on July 21, 1998 , findi ng, among other things:
The lease unamb iguously granted GPM an a nnual option to renew the Lease inde fini tely and i n perpetui ty; Haley’s attempts to terminate the lease on the ba sis that i t creates a tenancy at will are invalid, and do not result in termination of the lease; and A ma terial fa ct issue ex iste d asto w het her GP M’ s c ons tru ctio n of a ra dio repeater tower on the leased property is w ithin the scope of the lease. The order concluded:
IT IS, THEREFORE, ORDERED that par tial summ ary judgm ent is hereby entered in f

avo r of GP M in tha t th e Le aseuna m bigu ous lyg rants GPM an annual op tion to ren ew the Lease indefi nitel y and in perp etuity.5

IT IS FURTHER ORDE RE D that Plaintiff’ s Mo tion for P artial Sum m ary Judgm entis denied in its entirety. Plaintiff’s attempts to term inate the Lease on the basis that it creates a te nancy at w ill are i nvalid and did not terminate the Lease. IT IS FURTHER ORDERED that a genuine issu e of material fact exists as to whether GPM’s construction of a radi o repeater tower on the L ease propertyis w ithin thesc ope of t he L eas e an d is authorized under the Lease. Then, upon jury trial, based upon the jury’ s finding that GPM did not f ail to comply w ith the lease agreem ent by constructing theradio repeater tower, thetrial court signed judgm ent thatHaley take not hing by thesuit and dec lare d th at ( 1) t he le aseis vali d an d re m ainsin full force a nd effe ct, (2) GPM has the right to continue to m aintain and operate its Lee-Tex Booster, the Tower, and the radi o shack located on the lease, and (3) GPM had the right to continue to u se the lease d prem ises for any lawful purpose in connect ion with the erection, ma intenanc e, operation, and repair of a gas booster station and other appurtenances and facilities useful and pro per in connection with gas pipelines, provided however, that it continues to elect to pay t he successive one-year annua l renewal options in accordance with the lease. Considering a ppe lla nt ’s i ssu es in a l og ic al ra th er th an seq ue nt ia l o rd er , we comm ence our analysis by considering Haley’s third issue by w hich he contends that the booster sta tion lea se established a tenancy at w ill terminable by either party. W e disagree. Haley did not allege any fraud, accident, or m istake or contend that the J uly 11, 1956 agreem ent did notconstitute the entire agreement of the parties. We comm ence our4 Duration of the lease. 6

ana lys is by rev i ewing paragraph tw o of the lease. According to the plain language, the lea se was for afixed termof one year, com menc ing July 11, 1956. In addition, the agreemen tgranted lessee the option to ex tend the lease for “successive periods of one (1) yea r ea ch, ” sotha t if less ee t im ely exercised the opti on, the lease continued i n effect for a subsequent one ye ar term . In Wi llis v. Thomas, 9 S .W .2d 4 23, 424 (Tex.Civ.App. –San Antonio 1928, w rit dism’d w .o.j.), t he court held:

To cr eate an es tate for years, or for any definite term, the lease mu st be certain, or capable of being m ade certain, as to th e b eg i nn i ng , d ur at i on , a nd te rmi na ti on of th e t er m. According to the July 11, 1956 agr eem ent, th e initial “term ” 4 of the lease was July 11, 1956 to J uly 1 0, 1 957 ; an d up on t he e xe rcis e of theopt ion b y le ssee, additional leases with one year “terms” foll owed. Because each one year term has its beginning and termination date, the July 11, 1956 agreem ent com plies with the rule in Willis.
The option allowing lessee to continue the lease in the July 11, 195 6 ag ree m ent is similar to the provision of the lease considered in Hull v. Quanah Pipeline Corp., 574 S.W.2d 610 , 61 1 (T ex .Ci v.A pp. --S an A nto nio 1 978 , w rit ref’d n.r.e). In rej ecting argum ents similar to the contentions of H aley, the court, in part, concluded:
The lease involved here clearly and specificall y sho ws th at it was the intention of both the lessor and the lessee that the lessee shoul d have a7

right of perpetual renewal. . . . The provisions of the lease are plain and unamb iguous and they clearly evidence an intent and purpose to create a right of perpetual renewal. The lease is valid and enforceable and the trial court’s holdings and findings are correct. Then, in Philpot v. Fields, 623 S.W.2d 546, 548 (Tex.App. --Texarkana 1982, no writ), after noting tha t nolegit im aterea son ex ists to p rev ent

par tiesfro m fre ely a nd in tellig ent ly contrac ting for t he term s of a lea se, thecourt h eld that alease for

a term of 20 years and s o lo ng thereafter as the lessee, hi s heirs, succe ssorsor assigns, ma yuse the prem ises for the purpose of m aintaining and operating a LTX separator, tank and other m achinery . . .
upon pay m ent

of a n an nua l ren tal of $7 5.0 0 was e nfo rce able and did not cr eate a tenancy at will ter minable at the will of either pa rty.
Norm an, et al. v. Morehous e, et al., 243 S.W. 1104 (Tex.Civ.App.--Am arillo 1922,
w rit dism’d w.o.j .), cited by Haley, is not controlling because the lease w as partially oral and the lessee conte nded that the l ease ran “so long as either of the defendants engaged in the business of mak ing a nd repairing harnesses, shoes, etc.” Here, however, the expiration date of

each y ear lease w

as spec ific. Furthe r, we have not overlooked Hal ey’s refere nce to Ho lcombe v. Lorino, 124 Tex. 446, 79 S.W.2d 307 (1935). However, th e former Holcombeopinions, see 76 S.W.2d 509 (Tex.Com m’ n.App. 1934) and 71 S.W.2d 71 (Tex.Civ.App .--Galveston 1934), taken togethe r also demons trate that Holcombeis not controlling here. Initi ally, Haley acknow ledges that the rental agreem ent in Holco mb e was5 Set out in footnote one. 8

ora l, w her

eastheJuly

11, 1956 lease was written and recorded. Nex t, according to the opinion of the Texas

Com mission of A ppeal s, 76 S. W .2d at 510, section 922 of the Revised Cod e of

Ord inan cesfor

theCit y of Hou sto n, p rov ided in part, “[a]ll leases or rental contracts shall run from m onth to m onth revokable at the pleasure of the m ayor or city council,” and in October 1933, the ma yor and council gave written notice of revocation of the rental contract. In contra st, how ever, t he July 1 1, 1956 agreem ent unde r review here did not gi ve lessorthe right to revoke the lease or otherw ise avoid the exercise of the option to renew b y lessee. Then, according to theopinion of the Cou rt o f C ivil A ppe als i n Holcombe , 71 S.W.2d at 403, Lorino alleged a tenure for the stall by “reason of its having long been the unifor m practice, custom, and invaria ble resul t to those so renting, using, and improving such s talls . . . ” whereas here the written lease agreem ent is clear, definite, and specifi c. Moreover, the Suprem e Court discussion is not a general statem ent of the rule. To the contrary, by its statem ent, “[f]or the purposes of thi s opini on ,” t he h oldin g is “case specific” and not applicable here. Moreover, ev en if applicable, at any given year following July

11, 1956, t he durati on of the lease was the following Jul y 10, unless extended by lessee’s ex ercise of the option. Accordingly, Haley’s third issue is overruled. Byissues one and tw o, 5 as restated, Hal ey co ntends tha t w her e th e lea se is
una mbiguousand the conduct of the parties is undisputed, the trial court e rred b y6 Haley also requested the following instruction: In determ ini ng whether a breach has been co mm itted, yo u are instructed that a “breach” is any a ct which ex ceeds or passes beyond the bounds of any rights w hich had been legally granted. For exam ple, where one entersanother’s property under t he authority of an expressed or conditional contract but exceedsthe expres sed or conditional rights granted in the contract, that person breac hes the contract. A

conditional or restricted consent to enter land under a contract creates a priv ilegeto d o soonly

insofar as the condition or restriction is complied with pursua nt to the term s of the c on tract. In determ ining the que stion of a breach in contra ct, yo u are further instructed that the intent is not a f actor.
7 Instruction: You are inst ruc ted tha t “f

ail to com ply with the lease agreem ent” is any use of the leased property th at is no t for any lawful purpose in connec tion with the erection, ma intenance, operation and repair of a gas booster sta tion and other appurtenances and facilities useful or proper in connection with gas pipe lines . The co urt al so def ined “facility” as something that is built or installed to perform so me particular function and an “appurtenance” as an apparatus, equipm ent, or accessory that belongs to or is attached to som ething else. 9 subm itting a pure question of law involving interpretation of an unambiguous lease to the jury as a question of fact. We disagree.
Atthe charge conference, H aley requested that the trial court submit the f ollowing breach of contract ques tion: 6
Did GPM’sactions in bu ilding therad io repeater tower consti tute a breach of the July 11, 1956 lease agreem ent?
The trial court refused to sub mit Haley’ s r equested question, but instead, su bmitted the question, “Did GPM fail to com ply with th e lease a greement dated July 11, 1956 by building a radio repeater tower,” 7 to which the jury answ ered no.10

Although the record shows that Hale y r equested t hat the trial court subm it a question to the j ury asking whether th e constructio n of the radi o tower constituted a br each of the July 11, 195 6 agreement, and that the tri al court re fused Haley’s request, the record does not show that Haley objected to the questi on which aske d substant i al l y t he sa me question which the jury answered advers e to Hal ey. Ru le 27 4 of theTex as R ulesof C ivil Proce dure requires that objec tions to the charge mu st pointout dist inct ly t he o bj ect iona ble mat ter and the grounds ofthe objection, other wise the object ion is waive d. Wal-Mart Stores, Inc. v. McKe nz ie , 9 97 S.W .2 d 2 78 , 2 80 (T ex. 1999). Also, in order to preserve a
com plaint for our review, aparty m ust distinctly specify an obj ection to the trial court. Te x. R. App. P. 3 3.1(a); St. Pa ul Surplus Lines v. Dal-W orth Tank, 917 S.W.2d 29 , 45 (Tex

. Ap p.- -Am arillo1995), aff’d in part and

rev’d in p art , 974 S.W.2d 51 (Tex. 1998). The purpose of an obj ection is two-fold: (1) to notify the trial judge and t he other party of the
com plaint; and (2) to preserve the complaint fo r a pp el la te re vi ew. W ilkerson v. PIC Realty Corp., 590 S.W.2d 780, 782 (Tex.Civ.App .--Houston [14th Dist.] 1979, nowrit). More over, the com plaint on appeal mus t be the sam e as that presented i n the trial court. Edward v. Texas Em ploym ent Com ’n, 936S.W.2d 462, 46 6 (Tex .App. --Fo rt W orth 199 6, no w rit). Because Haley did not objec t to the charge on the ground that it subm itted a pure question of law invo lving inte rpreta tion of a n un am bigu ousle ase to the j ury, the error was not preserved and nothing is presented for review

. Further, beca use Haley requested that the trial court include substantially the same question in the charge to t he jury, Haley’s contenti on is ba rre d by thedoc trin e of invi ted err

or, w hich is a n eq uita ble d oct rine w ell11

established in Texas j urisprudence. See General Chem ical Corp. v. De La Last ra, 852 S.W.2d 916, 920 (Tex. 1993), cert. dism’d , 510 U.S. 985, 114 S.Ct. 49 0, 126 L.Ed.2d 440 (1993). Accordingly issues one and tw o present nothing for review and are overruled. Byhis fifth issue, Haley contends the trial court erred in excluding ex pert and lay testimony

regarding the scope of the lease that conflicts w ith the District Court’s decision to subm it the question of lease interpr eta tio n to the j ury. We di sagree. Regarding the exclusi on of e vid ence of fered by J. Evetts H aley, Jr. and Jef f Haley a s non-ex pert witnesses, the brief does not reference the record w her e a b ill of excep tion s is loca ted in the record and we have found none. B ecau se the sug ge st ed te st imo ny of th es e t wo witnesseswas not

presented by bill of exception, no error is preserved for our review

. See Te x. R. App. P. 33.2; Hartford Ins. Co. v. Ji minez, 814 S. W .2d 551, 552 (Tex .App.
-- Houston [1st Dist.] 1991, no w rit). Haley also contends the trial court erred in excluding the testim ony of attorney Tom Scott as an ex pert to testify that the construc tion of the radio tower w as not w ithin the scope of the lease agreem ent, which is presented by bill of exception. During the pre-trial conference on the day of trial, am ong other thin gs, by reviewing the discovery docu ments, counsel for GPM, dem onstrated that TomScott had n ot be en designa ted as an ex pert witness and shoul d not be permitted to testi fy. Rule 193.6(a) of the Texas Rules of Civil Procedure provides in part:12

(a) Exc lusion of Evi dence and Ex

ception s. A pa rty who f ails to make, amend , or supplement

a discovery response in a tim ely manner m aynot

. . . offer the test imony of a witness . . . whowas not timely identified, unless the court finds that: (1 ) there was good cause for the fai lure to ti mely m ake , amend , or supplem ent the discovery response; or (2) th e f ai l ur e t o t i mel y ma ke , a me nd, orsupplement the discover yresponse w ill not unf airly sur pris e or

unf airly prejudice the other parties.
Under subparagraph (b) the burden of establi shing good cause or lack of surprise is on the proponent of the w itness and a finding of good cause or the abs ence of unfair sur prise must be supported by therecord. Also, subpara graph (c ) providesthat t he trial cour tma y granta continuance so that theopposing party m ay conduct discovery. In app lying Rul e 193.6, in Snider

v. Stanley, 44 S. W .3d 713, 715 (Tex .App. --Beaum ont 2001 , pet. denied), noting that the opposing party had no t had the opportunity to takethe d epo siti o n of the exp ertwitness, th e court upheld the decision of the trial court to exclude the testim ony of the expert witness not timely des ignated. Also, the court held that th e denial of the motion for continuance was not an abuse of d iscretion. Although the trial court excluded Scott’s testi mony, Haley’s brief does not address the ruling of the trial court, and does notcontend that the trial court erred in excluding the testimony

und er R ule 193.6. Moreov er, Haley does not m ake any reference to therecord which dem onstrates good cause or that the ab sence of unfair surprise is supported by the13

re co rd . Ac co rd in gl y, we conclude the trial court did not err in excluding the testim ony of the non-designated expe rt witness. Issue five is overruled. Byhis fourth issue, Haley contends t he trial court e rr ed by failing to submit a question to the j ury regarding GPM’s trespass on the Haley ranch in connection w ith the construction of the m aintenance of the radio com munications tow er. In this regard, because the jury

found that GPM did not fail to compl y with the lease agreement by building therad io repeater towe r, and we h ave overruled issues one and two above, the question is moot and our consideration of this issue is not necessary to our disposition. Tex. R. A pp. P. 47.1. Accordingly, the j udgme nt of the trial court is affirmed.

Don H. Rea vis Justice
Publish.