## In the Court of App eals Second Appellate District o f Texas at Fort Worth

___________________________ No. 02

- 23

- 00027

- CV

___________________________

On App eal from the 348th District Court Tarrant County, Tex as Trial Court No. 348

- 325747

- 21

Before Bassel, Womack, and Wallach, JJ. Memorandum Opinion by Justice Bassel 

### N ORTEX 

### M INERALS 

### , L.P. AND 

### P ETRUS 

### I NVESTMENT 

### , L.P. , Appellants

V



### . B LACKB EARD 

### O PERATING 

### , LLC ; B LUESTO NE 

### N ATURAL 

### R ESOURCES 

### II, LLC ; AND 

### D IVERSIFIED 

### P RODUCTION 

### , LLC , Appellees2 MEMORANDUM OPINION
I. Introduction Appellants Nortex Minerals, L.P. and Petrus Investment, L.P. appeal from a
summary

- judgment order in which t he trial court did not accept th eir interpretation of

a n assignment provision in an oil

- and

- ga s lease

. In their sole issue, Appellants seek to
have this court accept their interpretation and hold that t he provision at issue requir ed Appellees Black beard O perating, LLC and BlueStone Natu ral Resources II, LLC to
obtain Nortex ’ s consent before “ transferrin g ownership ” to Appellee Diversified Production, LLC

. Because the sale of equity in Bl ueStone d id not constitute a
transfer of an interest in the leases at issue , and thus d id not trigger the leases ’ consent provision, we decline to accept Appellant s ’ interpretation of the assignment provision
and affirm the trial court ’ s j udgment.
II. Bac kground
The affidavit of Bla ckbeard ’ s genera l counsel sets forth the background relat ed
to how Blackbeard came to own an interest in the Alliance Leases 1 that are at issue , and even though that background is complex, the question before us involves a singl e, short paragraph in the A l liance L eases . The affid avit explains that [t] he Alliance Ma s ter Lease i s the first in a ser i es of identical (or nearly identical ) leases between Nortex Mine rals, LP or Petrus Investment, L P, as lessor, and Chi ef Holdings LLC o r Quicksilver Resources, I n c .

1 Allianc e Texas is a 27,000

- acre re al

- estate development consisting of commercial properties , as well as a n airport and railroad facilities. The minerals under AllianceTe xas are managed by Nortex.3 ( [] Q RI [] ) , as lessee. In May 2003, Nortex entere d the Alli ance Master Lease with Chief. F r om 2003 t hrough 2008, No rtex and Chief entered into a series of id entical leases covering additional acreage in Tarra nt and Denton Cou nties. In 2008, Chief ass i gned its entire i nterest in those leases to Q RI. From 2009 th ro ugh 2014, Nortex and Petrus en t ered into addition al, nearly identi cal leases with QRI. Those lea ses, twenty

three in total, are collectively the “ A lliance Leases. ”

. . . . 6. Some of th e Alliance Leases have been amended since their
e ffective date. The only a mendment that affect s the Limited Assignment Provi sion included in paragraph 10 is the Alliance Leases Amendment. That May 20, 2008 amend ment created the current version of the Lim i t ed Assignment Pr ovision

. . . . [ E x hibit r eferences omitted.]
T he text of the amended Limite d Assignment Provision tha t we must construe
is as follows: Except as provided herein, Lessee may not assign or otherwise t ransfer
an interest in th i s Lease without p rior writte n consent of Les sor, which consent may be grante d or denied in the sole and absolute discretion [,] and without such consent, any instrument purporting to assign or otherwise tran sfer o f this lease shall be void. Lessee shall h a ve the right to tr ansfer thi s Lease in its e ntirety without obtaining consen t from lessor if such transfer of the Lease is (i) part of a merger, sale of membership interests or combination of Lessee and another e ntity [,] or a sale of all or substantially a ll of Lesse e ’ s assets or (ii ) as part of a t ransaction in which the transfer e e is a publicly traded energy co mpany with a market capitalization in excess of $1 billion. [] Items (i) and (ii) are referred to herein as “ Permitted Tran sfers[. ” ]
Blackbeard ’ s general counsel ’ s affidavit continued t o describe the histo r y of the title to the leases and the background of the transaction that create d the question regarding whether the Limited Assignment Provision triggered a need for Nortex to

c o nsen t to the transaction :4 T he Al liance Leases entered into after May 20, 2008[ , ] contain the amended language for the Limite d Assignment Provision. No other
am endments affect the Limit ed Assignment Provision or the notice

- and

cure requirements of paragra p h 23

. 7. Through its bankruptcy proceedings in March 2015, QRI transferred 5 4 .37 5% of its interest in the Alliance Le ases to BlueStone.

. . . 8. In 2018, Black beard acquired BlueStone ’ s e quity. At that point, Blu eStone became B lackbe ar d ’ s wholly owne d subsid iar y. At no point since acquiring QRI ’ s inte rest in the Alliance Leases did B lueStone transfer its interes t in the A l liance Leases to any other entit y, includ ing after BlueStone ’ s acq ui sition by Blackbeard.
9 . At the beginning o f 2021, Blackbear d enter tain ed bids from prospective purchasers intere st e d in acquiring BlueStone ’ s i nter est in the Alliance Leases

— bein g all or substantially all of BlueStone ’ s assets. Nortex submitted a bid to purchase those inter ests, but [its] bid w as ultimately les s than half of the winning bid belonging to [ Dive rsif ied Production, LLC ( DGO )] . Dur i ng B lackbeard and DGO ’ s negotiations, the parties ultimately agreed to transition the deal from a sale of all of BlueStone ’ s assets to a sale of all of B lueStone ’ s equity

. 10. In May 2021, Blackbeard entered int o a Pu rcha se and Sale Agreement [(PSA) ] wi t h DG O . . . . DGO is an affiliate of Diversified Energy Company PLC (a publicly traded energy company with a market capitalization in excess of $1 billi on). T he PSA pro v ides for D GO ’ s acquisition of all membership int eres ts in BlueStone ’ s equity. To
ac c ompl ish th e sale, the PSA provi d es for converting BlueS t one into a Texas LLC, merging BlueStone into various other Texas LLCs, and [ having] BlueS tone sur viv[e] the merger for DG O to purchase all of BlueStone ’ s equity. [ 2 ]

. . . . 12. On May 21, 2 0 2 1 , [ B lackbea rd ’ s g eneral counsel] sent Nortex and Petrus a letter not ifying them of Blackbeard ’ s plans to sell

2 A flowchart of the transaction, which w as includ ed in Blackbeard and Bl ueStone ’ s brief , is attached as A ppe n dix A to this opinion.5 BlueStone ’ s equity to DGO.

. . . In that letter, [ Bl ackbeard ’s g eneral counsel] provided detailed information abo ut DGO, t he conversions and mergers provi d ed for by the PSA, and the value Bla ck beard and DGO allocated to BlueStone ’ s ownership of the Alliance Leases. [ Blackbeard ’s g enera l counsel] also provi ded them wi t h a re dacted cop y of the PSA. In that letter, Bl ackbeard offered to sell BlueStone ’ s inte r est in the Alliance Leases to [ Nortex and Petrus] on the s ame terms and for the same price as offered to . . . DGO in the PSA. At n o point since sending that lette r has Nortex or P etrus accepted that offer.
13. On June 3 , [20 21 , Nortex and Petrus] resp o n ded to [Blackbeard ’ s general counsel ’ s ] le tter, withholding their consent to the DGO sale but not affirmatively electing to exer cis e their option to pur chase.

. . . That letter made vague reference to alleged sur face obligation s BlueStone and Blackbeard owed [ Nortex and Petrus] but did not notify [Bla ckbeard and Blue Stone] that they [had] breached the Alliance Leases. On June 8, [20 21 , ] [ Nortex and Petrus] su ed [ B l a ckbeard and Blue Stone ] for breaches of the Allia nce Leases

. The pleadings reflect that Appellants also sought a declaration that the Limited Assignment Provision required Nortex’s consent for the outl ined equity sale to occur

. Blackbeard and BlueS tone answered a nd counterclai med seeking declar a tions of their

own. Three months after Appellants filed suit, Blackbear d and BlueStone filed a
traditional motion for summary judg ment that attached the affidavit just quoted

. Appel lants filed a m otio n for partial summary judgme n t , as well as a second amended petition that added Diversified

. In response to the motions for sum mary judgment, Appellant s an d Bla ck beard and BlueSto ne filed r esponses and replies. The trial court
summarized the se competing motions for summar y judgment in the “ Order6 R e garding Defe nda nts ’ Traditional Mo tion for Summary Judgmen t an d P laint i ff s ’
Motion for Partial Summary Judgment ” : In their Motio n fo r Summary Judgment, Defend an t s Blackbeard Operating, LLC (Blackbeard) and BlueStone Natural Resources II, LLC (BlueStone) argue that [] (1) the Limited Assignm ent Provision, as define d in th e Defendants’ motion, does not apply to the Purchase and Sale A gree ment (PSA) between Blackbear d and Diversified Production, LLC (DGO) for the sale of BlueStone’s equity [,] (2) even if the Limited Assignmen t Provision did app ly, the sale of BlueSton e’s e qu ity is a Permitted Tr ansfer and Plaintiffs fai led to timely acc ept the purchase offer [,] (3) th e consent requirement is unenforceable as an unreasonable restraint on alienation [,] and (4) Plaintiffs’ breach [

- ] of [

- ] contract claims against Defendants fail bec a us e Plaintiffs failed t o provide pre

- suit notice and the opportun ity to cure.
In their Motion f o r Partial Summary Judgment, Plaintiffs Nortex Minerals, LP (Nortex) and Petrus Investment, LP argue that [] (1) the sale of BlueSt one’s equity constitutes a t r an sfer of the Alliance Leases subject to Nortex’s right to withho ld c onsent [,] (2) Nortex timely w ithheld consent to the transfer of Blackbeard’s and BlueStone’s partial interest in the Alliance Leases to DGO [,] and (3) the PSA is void to the extent i t pu r po rts to transfer Black beard’s membership interest in BlueS tone o r Bl ackbeard’s and BlueStone’s i n terest in the Alliance Leases to DGO. [Footnote o mitted explaining that Defendants refers t o Black beard a nd B lueStone only. ]
The trial court th e n went on to explain why the DGO e quity transaction did not trigger the consent req uirement of the Limited Assi gnment Provision :
Pursu a nt to Tenneco Inc. v. Enter. Prods. Co. , 925 S.W.2 d 640, 645

– 46 (Tex. 1996 )[,] a nd T ex. Bus. Orgs. Code [Ann.] §§ 1 0. 008 ( a)(2)(C), 10.106(a)(2)(C), the [c] ourt determines that the sale of BlueStone’s equi ty is not a transfer of Defe ndants’ interest in the Alliance Leases, s o the DGO sale does not trigger N ortex’s consent rights. Alth ough Plaintiffs argue that the “All ia nce Leases contemplate mergers and sales of membership interests as transfers of an int erest in the leases,” the [c ] ourt agrees with the Defendants that this argument improperly reads a cha n ge

- of

- control provision into the Alliance Leases. Because the7 L

im ite d Assignment Provision does not apply to the DGO sale, the [c] ourt need not determin e whether the sale is a Perm itted Transfer, Plaintiffs failed to timel y accept the purchase offer, or t he Limited Assignment Provisi on i s an unreasonable restraint on al ien a tion. The [c] ourt, accordingly, grants the Defendants’ Motion for Summary Judgment on this issue.
The trial court also found that notice an d a n opportunity to cure is not a condition precedent to Plai ntiffs’ /App ella nts ’ breach

- of

- contract suit and that
D efendants’ /Appellees ’ Motion for Summary J udgment on Plaintiffs’ b reach

- of

contract claims should be denied. Acc ording ly, the trial cou r t granted
Defenda nt s ’ /Appellees ’ summary

- judgment motion on their claim that the DG O sale
was not a transfer of their interest in the Alliance Leases sub ject to Nortex ’ s consent rights u nd er the Limited Assignment P rovision, denied the remainder of
Defend a nts ’ /Appellees ’ motion, and denied Plai nt iffs ’ / Appellants ’ motion for partia l

su mma ry judg ment. The tr ial court heard the competing summary

- ju dg ment motions
on December 9, 2021 , but did not sign an orde r until November 8, 2022. During the eleven months between when the tria l court heard the competing

su mmary

- judgment motions an d s ig n ed the order disposing of them, Di versi fied
answered , counterclaimed fo r a declaration regarding the equity sale, and filed a
motion for summ a ry judgment and an amended motion. Appellants resp onded

. Appellants al so fi led a notice of partial nonsuit as t o thei r breach

- of

- contract claim again s t BlueStone and their t or tious

- interf er ence claims against Blackbeard and
Diversified. The trial court co nsidered Diversified ’ s amended moti on for summary8 judgment and the response and granted the motion “ for the rea sons, and to the sa me extent, as set forth in t he [c]ourt ’ s Order Regarding Defendants ’ Tra d itional Motion for Summary Judg ment and Plaintiff [s ’ ] Motion for Partial Summary Ju dgment dated
November 8 , 202 2. ”
In addition to the January 1 1, 2023 order gr anti ng Diversifi e d ’s amended
moti on for su mmary judgment , the trial court signed a sep a rate “ F inal J udgment , ” referencing it s prior interlocutory decision s of November 8, 20 22 , and January 11,
2023. The tri al court ’ s final judgmen t, which stated that it “ reso lve [ d] all claims and
causes of action asse rted against all parties in th i s matter, ” reiter ated that “ [i]n accordance with those rulings, the [c]our t hereby declares that the s ale of e q uity in
BlueStone

. . . was not a transfer of an interest in the Al li an ce L eases, so the sale did not trigger Nortex ’ s consent rights in those l e ases. ” Appellants th en perfected this appeal.
III. The Interlocutory Or ders Merged into the Final J udgment
A t the outset, we address Diversif ied ’ s argument that Appellant s w a i ved their appeal as to Diversified by failing to specifically challe n ge the separate order that
grant ed Div ersified ’ s amended motion for summary judgmen t. Diversi f ied contend s that Appellants explicit ly li mited their requested relief to r eversal of the or der gr anting
Blackbeard ’ s and BlueStone ’ s motion and the final judgment. Appellants respond that they p roperly appealed and assigned error to the f inal judgment containing the declaratory j udgmen t in question. W e agree with A p pell ants
.9 “When a trial cour t r e nders a final judgment, the court ’ s interlocutory orders merge in to the judgment an d may be challenged by appea ling that judgment. ” Bonsmara Nat. Beef C o. v. Hart of Tex. Cattle Feeder s , LLC , 603 S.W.3d 385, 390 (Tex. 2020)

. Moreover, a notice of app eal from a final judgment need not identify every adverse interlocutory ruling merge d i nto the final judgment that an appellant intends to challenge

. See Ma cDonald v. Harris Methodist HEB H osp. , No. 02

- 10

- 00267

- CV, 2011
WL 26519 91, at *2 (Tex. App.

— Fort W ort h July 7, 2011, no pet.) (mem. op.)

. Here, Appellants properly cha llenged the final judgment, which incor porate d
the order granting Diversified ’ s amended motion for summary judgment.
A c cordingly, we hold that Appellants did not waive their appeal as t o D i versified.
IV. No Transfer Occurred to Trigger Consent In Appellants ’ sole issue, they argue that a sale of me mbership interests in a lessee constitutes a transfer of an interest in a l ease, thus triggering Nortex ’ s consent right

. Howeve r , Appellants ’ in terpretation is not supported by the plain language of
the unam bigu o us Limited A ssignment Provi sion

. A. Standard of Review Declaratory judgments decided by summary jud gme nt are reviewed under the same standards of review that govern summar y ju dgments g ener ally. See Tex. Civ. Prac. & Rem. Code Ann. § 3 7.010. We review a summary j udgment de novo. T

ravelers Ins. v. Joachim , 315 S.W.3d 860 , 862 (Tex. 2010). We consider the evidence presented in the light most favorable to the nonmovant, cre d iti ng eviden ce f avorable10 to the nonmovant if reasonable jurors could, and disrega rding evide nce contrary to
the nonmovant unless reason able jurors coul d not. Mann Frankfort Stein & L ipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). We ind u lge every re ason able inference and resolve any doubts in the nonmovant’s favor. 20801, Inc. v. Parker , 249
S.W .3d 392, 399 (Tex. 2008)

. When both par ties move for summary judgment a nd the trial court grants one motion and denies the other, the reviewing cou rt should

rev iew both parties’ summary

- judgment evidence and determine all que stions
pres ented. Mann Frankf ort , 289 S.W.3d at 848

. We should then render the judgment
that the tri al court should have rendered. See Myrad Props., Inc. v. LaSalle Bank N a t’l
Ass’n , 3 00 S .W.3d 746, 753 (Tex. 2009); Mann Frankfort , 289 S.W.3d at 848.
B. Applica ble Law In construing a contract, our primary concern is to de termine the parties ’ intent

as e xpr essed by the contract ’ s plain language

. Wagner v. Apache Corp

. , 627 S .W.3d 277,
2 85 ( Tex. 2021)

. A court must examine and consider the entire writing to harmoni ze and give effect to all provisions, b ut no one asserts he re that the Limited Assign m ent
P rov ision conflicts with any other portions of the A l liance Leases or tha t the provisi on c annot be given a definite legal meaning. See id. (“A contract is unambiguou s if it can be give n a definite or certain legal meaning.”)

. An unambiguous document will be enforced as written. In re Davenport , 522 S.W.3d 452, 457 (Tex. 2017 ) (orig. proc eedi ng).11 C. Analy sis The question before us is whether Blackbeard ’ s s ale of equi ty in BlueS t one

con stituted a transf er by a lessee of an in terest in the Alliance Leases su ch that
Nortex ’ s consent was required pursuant to the Limited Assignment Provision

. The
framework that we use to answer this question will follow the sam e decisional path
that the tri al court outlined in its “ Order R e gardin g Defe nda nts ’ Traditional Mo tion
fo r Summary Judgment and P laint i ff s ’ Motion for Partial Summary Judgmen t ” : ( 1) we w ill de termine if a transf er occurred ; (2) if a transfer o ccurred, we will
determine whether it wa s a permi tted transfer ; and (3) if it was not a permitted
transfer and con sen t was required, we will determine whether the provision i s an unenfor c eable restra int on alienation

. As explaine d below, our analysis c eases after
the first step in the framework b ecause we conclude that Bla ckbeard ’ s equ ity sale did
not constitute a tr ans fer by a lessee

. As set forth above, t h e plain la nguage of the Limite d Assignment Prov is ion
states, “ Except as provi ded herein, Lessee may not assign o r otherwise transfer an
intere st in this Lease without p rior written c onsent of Lessor

. ” Here , B lackbeard ’ s general counsel ’ s affidavit described how B la ckbeard ’ s sale of Bl u e Stone ’ s e qu i ty
occurred through a series of mer gers , with B lueStone retain ing it s i nterest in the
Alliance Lea ses after the mergers were compl ete (as noted on the flowchart i n
A ppendix A) . B lackbeard and BlueStone ar gue that the merger s did not transfer an
interes t in t he A l liance Leases and support their argument by referencing Busi ne ss12 Organi zations Code Sectio n 10.008(a)(2)(C). S ee Tex. Bus. Org s. Cod e A nn. § 10.008(a)(2)(C)

. Th at subsection demonstrates that the effect of a mer g er is not a transfer : When a me rger takes eff ect [ , ]

. . . all rights, title, an d interests to all real estate and other property owned by eac h organization that is a party t o t he merger is allocated to and vested, subject to any existing liens or other e n cumbrance s on the property, in o ne o r more of the survivin g or new organizations as provided in the plan of me rger without

. . . any transfe r or assignment having occurred

. I

d. (empha sis added)

. Blackbeard and BlueStone also point to Texas Supreme Court prece dent narrowly construing res trictions on transfers of property

. See Tenneco , 925 S.W.2d at
646

. In Tenneco , the co

- owners of a natural gas plant entered into an operatin g agreement t ha t provided the plant own ers with a preferential right to purchase any
other owner ’ s interest i n th e plant. Id. at 641

– 42. Tenneco sold all of one of the co

owner ’ s stock to a third party. Id. at 642. The other owners in the plant sue d
Tenneco , claiming that t he stock sale violated the right of first refusal

. Id. The
supre me court held that “ t he s u mmary [

- ] jud gme nt evidenc e establishe [ d ] as a matte r of law that the Second Transfer embodied a stock sale and not a transfer of assets ”
and that “ [t]he tra ns action was not, therefore, a transfer of . . . ownership interest in
the frac tionation plant. ” Id

. at 645. The sup reme cour t went on to explain that

t he plain language of th e Restated Operating Agr eement provides that only a transfer of an ownership i nt erest [in the plant ] triggers the preferential right to purchase; it says not hing about a chan g e i n stockhold ers . The E nterp ri se Parties could have included a change

- of

-13 control provision in the agree ments that would trigger the preferential right to pur ch ase. None of the agreements among the parties contained such a provision. W e have long held t hat courts wil l n ot rewrite ag reements to insert provisions [that] parties could have included or to imp l y restraints for which they have not bargained.
Id. a t 646. A s in Tenne co , t he Alliance Leases contained no change

- of

- control provis io n , and we will n ot add one . T he plain languag e of the Limited Assignment Provision unambiguously require d a “ transfer [ of ] an interest in th [ e ] L ease ” to trigger

t he consent provision , but no such transfer occurred during the equity sale

. Having
determined t h at there was n o transfer , we n e ed not proceed down the frame work. Appellants , however, focus on the car ve out for Permitted Transfers, attempting to show tha t this scenario was not a Permitted T ransfer and that consent was therefore required

. As noted in the frame w ork that we set fort h at the outset of
th e analysis section, we do not engage in a determination of whether this sce nario falls
i nto the ca rve out for a Permitted Transfer because there was no transfer. To the extent that App ellants ’ argument can be read to s ay that the Permitted Transfer portion of the Limited Assignment Provision expands the first sentence of the
L

imi ted Assign me nt Provision

— the sentence providing the general consent rule that

“ [e] xcept as provided herein, L essee may not assign or other w

ise transfer an interest in this Lease without p rior written consent of Les sor ”

— because the Permitted
Transfer carve out ex empt s some mergers (i .e., that a merger requires Nortex ’ s consent) , as noted in Blackbeard and BlueSton e ’ s brief,14 The Permitted Tran s fer rule does not general ly exempt mergers and membership sa les; it exempts only[] “ transfer [s] of the Lease [that are ] (i) par t of a merger, sale of m embership interests o r combination of Lessee and another entity or a sa le o f all or substantially all of Les s ee ’ s assets or (ii) a s par t of a transaction in which th e transfer ee is a publicly traded energ y company with a market ca pi ta lization in excess of $1 billion. ”
For there to be a Permitted Transfer under the Alliance Leas es, there has to be a “ transf e r o f the Lease, ” and that transfer has to be

“ part of ” ce rt a in changes of control or “ part of ” a sale to a specific kind of com pa ny. [Appellants ’ ] argument leaves out these two predicate requirements. [Record reference omitted.] Ultimately, Appellant s ’ a r gu ment emphasizing the “ mer ger ” p ortion of the
Limited Assi gn m ent Provision and their argument in t he ir reply brief as to the
definit ion of “ part of ”

— that the carve out “ applies if the transfer is an integral
element of a mer ger ”

— fails because there m ust b e a transfer of the lease

. Appellant s ’
p rem ise regarding why the exception cover s B lack beard ’ s sale of equity in BlueStone turns on the broad reading of “ interest , ” i.e., sin ce the sale of equity must be the

t ransfer of an interest, the l a nguage of t he e x ception embrace s t he equity sale because
it is “ part of ” the transfer of an inter es t. In their reply brief, Appellants take aim at Appellees ’ refer ring t o the term “ interest ” in the Limit ed Assignment Provisio n as a

“ prop erty interest

. ” Appellants c onte n d th at by “ adding the word ‘ pro perty, ’ [Appellees ] sh ift a ttention from the plain meaning of the word ‘ interest, ’ which means

mor e than a direct property interest ” ; Appellan ts then set forth a variety of definitions
of the word “interest. ” Y et, direc tly p receding that contention and the defin it ions set forth by Appellants , A p pellants state, “ But the leases do not refer to a ‘ property15 interest ’ ; they refer to ‘ an intere st in this Lease. ’ ” This latter portion is what
A ppel lants home in on , argu in g t hat [ t] h e ordinary me an ing of “interest” also includes participating in an “ad vantage” or “profit. ” When it became the 100% owner of BlueStone, Diversifi ed undeniably received the rig ht to participate in the “advantage” or “ prof it” of the Alliance Leases. T hus, it acquired a n “interest” in the leases.
A ppellants ’ argument is di vorced fro m the word that precedes “ an interest in this
L ease ” and is at the crux of t h is appeal

— “ transfer. ” BlueStone did no t “ tr ansfer an interest in this Lease. ” Whether some p ro fit s from the A lliance Leases may flow to
Diversified due to the structur e of the equity sale is not before us . W e were tasked

o nly with determining whether t he equity sale “ transfer [red] an interes t in this Lease , ”
and we conclud e that no transfer oc cu rr ed b e cause BlueS tone continue s to own its

same i nterest in the Alliance Leases. We are th us not persuaded to alter our analysis based on Appellants ’ definitio n

- of

- interest argument
. I n the absence of a transfer, the
Permitted Transfer carve out does no t supp o rt Appellants ’ interpretation of the
Limited Assignment Provision

. Addition ally , we d ecline to look at the his tory and conte xt of the Limited
Ass ignment P rovi sion (including prior versions of the provision) , as Appellants would
have us do, because t he pla i n language of the Limited Assignment Provision is
unambi g uous and beca u se t he amended version superseded a n d r eplaced the pr ior
version. Cf. Webb v. Martinez , No. 04

- 16

- 00 042

- CV , 2016 WL 7234044, at *2 (Tex. App.

— San A nton io Dec. 14 , 2016, no pet.) ( mem. op.) ( “ Because the reservation16 clause is unambiguous, w e ma y not look outside the four cor n ers of th e deed t o vary the terms of the reserv ation clause. ” ). Furthermore, we disagree with Appellants ’
contention that “ neit her the gene ra l rule in Tenneco nor t he statutes [such as Busines s Org anizat ions Code S e ctio n 10 .00 8(a)(2)(C)] override the fac t th at these parti es agreed
that consent would b e required for certain sales of equity

— namely, ‘ sale[s] of membership interest s ’ ” ; their contention relies on lan guag e from the Per mitted
Tran sfer section th at w e do not reach , and as explaine d ab ove, both Tenn eco and
Se ction 10.008(a)(2)(C ) support the conclusion that no transfer occurred as a re sult of the equity sale

. And alth ou gh Appellants contend that the tria l co u rt “ failed to
gra pp le ” with the “ bedrock ru le ” from Barrow

- S haver Res. Co

. v. Carrizo Oil & Gas, In c. , 590 S.W.3d 471, 48 8 (Tex. 2019) , that “ parties are free to contract around established industry custom and usa ge , ” t he parties here did not contract aro u nd the general rule,

so Barrow

- Shaver does not apply.
Based on our de novo review, w e c onclude as t he trial court did that the sale of equity in BlueStone was no t a transfer of interest in th e Alliance Leases, so the sale did not trigger Appellants ’ c onse n t rights in those leases

. 3 We therefore over r ule Ap pellants ’ so le is sue.

3 Alternativel y, the Li m ited Assignment Provisio n was not triggered because it require d that the lessee transfer an in terest in the leases , and Bl ackbeard was not a lessee. Thus, this provid es an alternative groun d to affirm the tri al court ’ s declaration that Blackbear d ’ s equ ity sale to Diversified did not trigger the consent provision.17 V. Concl u sio n Having o ve rruled Ap pellants ’ sole issue, we affirm the trial court ’ s final judgment. /s/ Dabney Bassel Dabney Bassel Jus ti ce Deliver ed: November 9, 202318 APPEN DIX A