COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MRC PERMIAN COMPANY,

 Appellant/Cross Appellee,

v.

POINT ENERGY PARTNERS PERMIAN 

LLC; TJ BAR, LLC; TUBB MEMORIAL, 

AN OREGON LIMITED 

PARTNERSHIP; PLAINSCAPITAL 

BANK, TRUSTEE FOR THE DEBORAH

JACKSON REVOCABLE TRUST; 

BANK OF AMERICA, N.A., TRUSTEE 

FOR THE JANELLE JACKSON 

MARITAL TRUST PART M2, JANELLE 

JACKSON MARITAL TRUST PART 

M1, AND FAMILY CREDIT SHELTER 

TRUST PART B; VORTUS 

INVESTMENT ADVISORS, LLC; JOHN 

SABIA; and BRYAN MOODY,

 Appellees/Cross-Appellants.

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No. 08-19-00124-CV

Appeal from the

143rd District Court 

of Loving County, Texas 

(TC# 17-06-869)

CONCURRING AND DISSENTING OPINION

The concurring and dissenting opinion issued March 15, 2021 is withdrawn, and the 

following is the concurring and dissenting opinion.
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While I agree with the majority opinion on the first and second questions certified from the 

trial court, I disagree on the third question addressing tortious interference with contract.

The primary term of MRC’s lease ended on February 28, 2017. Pursuant to the continuous 

operations clause, MRC could only extend the primary term by spudding another well by May 21, 

2017 (180 days from the date of the last spudded well). And as of that date, the summary judgment 

record shows that objectively there were no new wells spudded on the leased premises. MRC 

admits that it had not even scheduled a rig to be on the lease premises until June of that year.

On June 8, 2017, Point Energy Partners Permian, LLC executed oil and gas leases with: TJ 

Bar, LLC; Tubb Memorial; PlainsCapital Bank (as trustee of the Deborah Jackson Revocable 

Trust); and Bank of America (as trustee of the Janelle Jackson Marital Trust et. al).1 MRC first 

raised its force majeure claim on June 13, 2017 through a letter to the four lessors. Point Energy 

had thus already entered into its leases almost a full week before MRC ever raised the force 

majeure issue.

MRC would need to prove four elements for its tortious interference with contract claim: 

(1) an existing contract subject to interference, (2) a willful and intentional act of interference with 

the contract, (3) that proximately caused the plaintiff’s injury, and (4) actual damages or loss. 

Prudential Ins. Co. of Am. v. Fin. Rev. Services, Inc., 29 S.W.3d 74, 77 (Tex. 2000). Point Energy 

and the other tort defendants filed a no-evidence motion for summary judgment that attacked 

several of these elements, including the element of intent.

MRC’s response to the no-evidence motion outlines testimony and documents which 

suggests the principals of Point Energy had early designs on the MRC’s leasehold interest, and 

1 Point Energy entered into a new lease with TJ Bar, LLC on June 14, but effective on June 7, 2017, that was 

denominated as a “top lease agreement.” Point Energy later converted the other three leases to top leases on August 

8, 2018, but with effective dates of June 7, 2017.
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that they may have made misrepresentations about Point Energy’s ability to develop the minerals 

on the property. At the very least, the agents for some of the lessors failed to investigate Point 

Energy which was a new and unproven entity. One of Point Energy’s agents may have also 

misrepresented his position in order to convince other agents for the lessors to sign with Point 

Energy. But even if true, none of that evidence proves an intent on June 7, 2017 (the date of the 

new leases) to divest MRC of its legal entitlement to the leasehold interest. There is no evidence 

that anyone other than MRC as of that date was aware of the factual events giving rise to the later 

claim of a force majeure. At best, MRC suggests that given its construction of the force majeure 

clause, Point Energy should have realized there was a sixty-day buffer period following the last 

day to spud a well in which MRC could potentially raise a force majeure claim. That claim, 

however, would depend on Point Energy being prescient enough to foresee the existence of a force 

majeure event (here, occurring away from the premises on a drilling rig that Point Energy had no 

connection to) and that this Court would eventually rule against Point Energy on the construction 

of the clause (even assuming we are the last word on that subject).

Nor would I find that Point Energy and the other tort defendants’ questioning of, and then 

litigating the force majeure issue, rises to the level of intentional interference with contract. Both 

parties raise well-reasoned arguments advocating for their interpretation of the force majeure 

clause. Neither party can identify a precedent four-square on point that controls the disposition of 

the legal question. To find an intentional interference with contract based on the advocacy of the 

competing arguments here would effectively “tortify” every good faith dispute over contract 

interpretation that might make mineral acreage available for development. Based on the rationale 

better explained in Dorfman v. JPMorgan Chase Bank, N.A., No. 02-17-00387-CV, 2018 WL 

5074769, at *6, *9-10 (Tex. App.--Fort Worth Oct. 18, 2018, no pet.) (mem. op.), I would affirm 
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the trial court’s grant of the summary judgment on the tortious interference with contract claims.

JEFF ALLEY, Justice

April 28, 2021

Before Rodriguez, C.J., Palafox, and Alley, JJ.