Opinion filed June 29 , 2018



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 16

- 00199

- CV

__________ GREEHEYCO, INC

. , Appellant

V. R.A. BROWN, JR., AND WIFE , PEGGY DONNELL BROWN, AS CO

- TRUSTEES FOR THE R.A. BROWN, JR., TRUST; MERRICK, INC.; DA N C. MORRIS, INDIVIDUALLY AND AS INDEPENDENT EXECUTOR OF THE ESTATE OF ROBERT BROWN MORRIS, DECEASED; SHIRLEY G. CARNEY; BELLE SCOTT MORRIS; CHARLTON MORRIS TRAYNOR; ANN CLOWE JOBE; CHARLES M. CL OWE; BRAD E. CLOWE; AND

AMY C. TRAUGHBER , Appellee s

On Appeal from the 39 th District Court Throckmorton County , Texas Trial Court Cause No. 3420

O P I N I O N This is a dispute between the lessors and lessee of an oil and gas lease regarding whether the lease remains in effect. The lessee asserts that its compliance2

with the lease’s “ continuous drilling ” clause maintained the existence of the lease

. 1
The trial court determined otherwise when it entered summary jud gment in favor of
the lessors. We reverse and remand. Background Facts Appellees are the lessors, or the successors in interest to the original lessors, of an oil and gas lease executed on May 30, 2012, in favor of Greeheyco

. T he parties
refer to the l ease as the “South Lease.” The South Lease covers approximately 3,993 acres in Throckmorton County. Appellees acted through their agent and attorney

in

- fact, Joe M. Bellah , in their dealings with G r eeheyco

. The original l ease contained a primary term of three years as well as a typical habendum clause that would extend the lease into the secondary term so long as oil and gas was being produced. T he original lease also contained a “continuous drilling” savings clause that is the subject of this appeal. The continuous drilling clause defined “continuous drilling operations” “as drilling which must be completed to a minimum depth of 1,000 feet.” On June 29, 2015, the parties executed an amendment to the l ease . The
amendment established the primary term as three years and sixty days measured
from the original date of the lease, May 30, 2012. Thus, t he lease as amended would
have expire d on July 29, 2015
, unless Greeheyco was producing oil or gas, or otherwise maintained the l ease under a saving s clause

. The amendment also relinquished formations above the top of the “ Caddo Formation

. ” 2 However, th e

1 Typical ly, an oil and gas lease is kept alive after its primary term only by production in paying quantities or a savings clause. See Krabbe v. Anadarko Petroleum Corp. , 46 S.W.3d 308, 315 (Tex. App.

— Amarillo 2001, pet. denied). If the lease’s primary term expires when there is non

- production and there is no savings clause or the lessee fails to comply with any savings clause in the lease, the lease and the lessee’s determinable fee interest automatically terminate. See i d

.

2 According to the Railroad Commi ssion of Texas website, the Caddo Formation in Throckmorton County begins 1,650 feet below the surface. The deepest depth is approximately 4,450 feet below the surface. Railroad Commission of Texas, SWR #13 Formation Data, http://www.rrc.texas.gov/oil

gas/compliance

- enforcement/rule

- 13

- geologic

- formation

- info (information for District 7B

– Throckmorton County)

.3

amendment also provided as follows: “ [N] ot withstanding the release of the
formations above the Caddo formation [ , ] a well drilled to a minimum depth of 1,000
feet shall still constitute ‘ continuous drilling operations’ as defined in Paragraph 10

. of the Lease.” Prior to the expiration of the amended primary term, Greeheyco’s drilling operator, Mantle Oil & Gas LLC, be gan drilling the “ First Brown South W ell ” on July 15, 2015. Mantle stopped drilling on July 18, 2015
, at a depth of 1 , 050 feet below the surface and released the drilling rig. Mantle ’s m anage r , Dwight Chris Barden, stated in his summary judgment affidavit : “W e stopped drilling on July 18, 2015 at the depth of 1,050 feet and determined that the First Brown South Well was a dry hole but could be deepened to another potential productive zone o r [deepened]
to be used as a saltwater injection or dispos al well. ” No further activity was
conducted on the South Lease until November.
On November 12, 2015
, Mantle began actions to build a location for the

“ Second Brown South Well. ” Barden stated that s uch actions included building a road, “pushing and pilin g brush, removing vegetation, cutting and leveling the pad, blading and compacting including subgrading the drill site location prior to laying down the base, building a reserve pit and delivered, spread and compacted the base material for the drilling pad .” Barden stated that these activities occurred continuously from November 12 to Dec ember 4 at a cost of $145,500.
On November 18
, Appellees filed the underlying suit against Greeheyco asserting a claim for declaratory judgment and seeking a declaration that the lease
had terminated. On December 4, Bellah arrived on the lease with Sheriff Rick Hodges

. They ordered Mantle to leave the premises. Mantle complied with this order by removing its equipment from the lease. Appellees subsequently amended their petition by replacing their declaratory judgment action with a claim for trespass to try title. Appellees alleged that the lease4

had terminated and that Greeheyco was interfering with their title through i ts failure
to release the land. In response , Greeheyco asserted a general denial, a specific “not guilty” plea, and affirmative defenses, including estoppel, quasi

- estoppel, waiver, ratification, obstruction and repudiation of the l ease, and interference with contra ct and a business relationship. Appellees moved for summary judgment on both no

- evidence and traditional grounds on i ts trespass to try title claim. Appellees’ no

- evidence ground asserted that Greeheyco failed to produce “evidence that any oil or gas was being produced
from said land on July 29, 2015, or that the lease was otherwise maintained in effect pursuant to its provisions.” Appellees’ traditional summary judgment ground alleged that there was no genuine issue of material fact that “(i) the primary term of the Subject Lease expir ed on July 29, 2015; (ii) there was no production of oil or gas from the leased premises at the expiration of the primary term of the Subject Lease; and (iii) no drilling operations were being conducted on the leased premises at the end of the prim ary term of the Subject Lease.” Appellees attached two affidavits with corresponding exhibits in support of their motion for summary judgment. Greeheyco responded to Appellee s ’ motion for summary judgment by objecti ng to Appellees’ attached summary judgment
evidence

. Greeheyco also asserted that the continuous drilling clause maintained the
l ease in existence . Greeheyco provided summary judgment evidence in the form of two affidavits and Bellah’s deposition. Appelle es objected to Greeheyco’s two summary judgment affidavits on the basis that the y did not state that the information

was “ true and within the affiant’s personal knowledg e. ” After a hearing, the trial

court entered a written order that overruled all object ions to the summary judgment
evidence and granted Appellee s ’ motion for summary judgment

. In four issues on appeal, Greeheyco contends that the trial court erred (1) by granting Appellees’ no

- evidence motion for summary judgment, (2) by overruling5

Greehey co’s objections to a supporting affidavit attached to Appel lees’ motion, (3) by determining that the terms of the oil and gas l ease ha d been established as a matter of law, and (4) by granting Appellee s ’ traditional motion for summary judgment because mate rial fact questions exist ed

. Appellees have presented two

cross

- issues on appeal. Appellees contend that the trial court erred in overruling
their objections to the supporting affidavit s attached to Greeheyco’s response. Additionally, Appellees contend that Greeheyco waived any argument that the l ease was extended for 120 days. We will address the evidentiary issues before analyzing
the merits of the summary judgment

. Analysis Objections to the Summary Judgment Evidence In its second issue, Greeheyco contends that the trial court erred in overruling its objections to Bellah’s affidavit because it and the documents attached to it are not competent summary judgment evidence. Additionally, Appellees contend in their
first cross

- issue that the trial court erred in overruling their objectio ns to Greeheyco’s responsive summary judgment evidence because the affidavits offer legal
conclusions and do no t establish the facts as true or within the affiant’s personal knowledge. Evidence offered in support of or in opposition to a summary judgment motion must be in admissible form to constitute competent summary judgment evidence.
See T EX

. R. C IV

. P. 166a(f). In addition, there is no difference between the standards
for evidence that would be admissible in a summary judgment proceeding and those applicable at a regular trial. United Blood Servs. v. Longoria , 938 S.W.2d 29, 30 (Tex. 1997). We review a trial cour t’s evidentiary ruling under an abuse of
discretion standard. Sw. E nergy Prod. Co. v. Berry

- Helfand , 491 S.W.3d 699, 727 (Tex. 2016). An abuse of discretion exists on ly when the court’s decision is made without reference to any guiding rules and principles. U

- Haul Int’l, Inc. v. Waldrip
,6

380 S.W.3d 118, 132 (Tex. 2012). “ An appellate court must uphold the trial court’s evidentiary ruling if there is any legitimate basis for the ruling. ” Owens

- Corning Fiberglas Corp. v. Malone , 972 S.W.2d 35, 43 (Tex. 1998).
G reeheyco made four evidentiary objections in respon s e to Appellees’ summary judgment evidence. Greeheyco’s first two objections were directed at an unsigned copy of the lease that was attached as an exhibit to Bellah’s affidavit. Greeheyco objected that the unsigned lease was not properly authenticated and was not the “best evidence” of the lease. Greeheyco also asserted that Bellah lack ed personal knowledge and that his statements were hearsay to which no exception applied and were unsubstantiated factual conclusions. On appeal, however, Greeheyco’s brief fo cuses only on the “best evidence” objection and a n objection
under the parol evidence rule

. Therefore, we direct our analysis to the se contentions

. In his affidavit, Bellah averred that a “true and correct copy” of the l ease was attached as Exhibit 1. This exhibit was comprised of three documents: a

“ Memorandum of Oil and Gas Lease, ” 3 an illegible lease that appeared to be signed
, and an unsigned copy of the lease. Within Bellah’s affidavit, there is no explanation of why the signed copy of the l ease a ttached to the affidavit is indecipherable

. During Bellah’s deposition, however, Appellees’ counsel stated that Appellees did not have a copy of the signed lease because Greeheyco took the original. Subsequently during the deposition, Bellah stated that the original lease was drafted by Greeheyco’s l andman using a reproduced lease that the landman dra fted for a different property. Greeheyco asserts that the unsigned/unfiled lease that accompanies the illegible lease is “not the best evidence of the content of the oil and gas lease that was actually signed by the owners and Greeheyco.” See T EX

. R. E VID

. 1002

– 1005.

3 Rather than filing an executed copy of the complete lease, the parties filed a “Memorandum of Oil and Gas Lease” in the public records.7

Furthermore, Greeheyco asserts that “Bellah’s assurances via parol evidence that the
two documents accurate ly state what the do cuments being interpreted say [are] not satisfactory in a summary judgment proceeding.” We disagree. Unless otherwise provided by the Texas Rules of Evidence, an original writing is required to prove the content of a writing. T EX

. R. E VID

. 1002. Under Rule 1003, “[a] duplicate is admissible to the same extent as the original unless a question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.” T EX

. R. E VID

. 1003. Furthermore, oth er evidence may be admissible to prove the content of a writing if the original is in possession
of the party against who m it is offered. T EX

. R. E VID

. 1004( d ). Rule 1004(d) states:

An original is not required and other evidence of the content of a writi ng, recording, or photograph is admissible if :

. . . .

. . . the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing

. Bellah averred in his affidavit that the unsigned lease attached to his affidavit

was a duplicate of the lease the parties executed

. See T EX

. R. E VID

. 1003. Greeheyco simply objected tha t the unsigned lease was not the best evidence of the contents of the signed lease. Greeheyco did not challenge the authenticity of the unsigned lease
and did not assert that it would be unfair to admit the unsigned duplicate in place of the original leas e

. Id. ; see Trice v. Colony Builder’s, Inc.
, No. 01

- 01

- 00501

- CV,
2002 WL 164318, at *4 (Tex. App.

— Houston [1st Dist.] Jan. 23, 2003, pet. denied) (mem. op.)

. Greeheyco also objected to the unsigned leas e , on the basis t hat a copy is not admissible if the original document is not produced, citing Mercer v. Daoran Corp. , 676 S.W.2d 580, 584 (Tex. 1984). Mercer is distinguishable, however, because8

“ [ t ] he absence of the original was never explained.” 676 S.W.2d at 584. Ap pellees offered an explanation for their lack of a legible, executed copy of the original lease. Furthermore, Greeheyco’s right to occupy the property emanated from the original
lease and Greeheyco quoted from the lease in its response to Appellees’ motio n for summary judgment by asserting its reliance upon the continuous drilling clause as maintaining the existence of the lease. The trial court could have reasonably concluded that Greeheyco possessed
either the original executed copy of the lease or a duplicate of the executed lease
when Appellees’ m otion for s ummary j udgment put Greeheyco on notice that the contents of the lease would be the subject of proof regarding whether the lease had
terminated. Yet, Greeheyco has not produced any document that it contends is the correct signed lease. See T EX

. R. E VID

. 1004(d). Accordingly, the trial court did not abuse its discretion by overruling Greeheyco’s objection under the best evidence
rule. Greeheyco also contends on appeal that Bellah’s affidavit contains parol evidence that is not proper summary judgment proof . The parol evidence rule is a
cornerstone of contract law that establishes that extrinsic evidence is not admissible to vary, add to, or contradict the terms of a written contrac t that is facially complete and unambiguous. Gail v. Berry , 343 S.W.3d 520, 523 (Tex. App.

— Eastland 2011, pet. denied). It is a rule of substantive law

— evidence that violates the parol evidence rule cannot be given legal effect. Id

. Bellah’s affidavit does not violate the parol
evidence rule because it is not an attempt to alter or contradict any part of the l ease. Rather, it is an attempt to prove the content s of the l ease because Appellees ’ copy of
the lease was illegible. See Wood v. Pharia L.L.C.
, No. 01

- 10

- 00579

- CV, 2010 WL 5060621, at *4 (Tex. App.

— Houston [1st Dist.] Dec. 9, 2010, no pet.) (mem. op.)

. We overrule Greeheyco’s second issue.9

In Appellees’ first cross

- issue, they assert that the trial court erred by overruling their objection s to Greeheyco’s responsive summary judgment proof. In identical objections, Appellees objected to the affidavits of Dwight Chris Barden and Robert M. Patton as being legally insufficient and impr oper summary judgment
evidence. Appellees asserted that the affidavits were legally insufficient because they did not establish the facts as true or within the affiant’s personal knowledge. Additionally, Appellees objected to the affiants’ conclusions that Greeheyco had complied with the terms of the l ease as bei ng improper legal opinions

. The tria l court denied both objections. “Supporting and opposing affidavit s shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is co mpetent to testify to the matters stated therein.”
T EX

. R. C IV

. P. 166a(f) ; see Gail , 343 S.W.3d at 522

. The affidavit must be positively and unqualifiedly within the affiant’s personal knowledge and represent
the facts disclosed to be true. Humphreys v . Caldwell , 888 S.W.2d 469, 470 (Tex. 1994). However, an affidavit is not defective for failing to specifically state that the
facts within are true and correct. Fed. Fin. Co. v. Delgado , 1 S.W.3d 181, 184 (Tex. App.

— Corpus Christi 1999, no pet.). When the aff iant states that the affidavit is based on personal knowledge, is subscribed, and is sworn to before a notary public, the effect is that the affiant is representing that the facts are true and correct. Id.

“ [ A ] n affiant’s acknowledgement of the sources from which he gathered his knowledge does not violate the personal knowledge requirement.” In re E.I. DuPont
de Nemours & Co. , 136 S.W.3d 218, 224 (Tex. 2004). Barden’s affidavit states that he is a member/manager of Mantle Oil & Gas,
LLC an d sets out to establish all the actions that were taken on the property on behalf of Greeheyco . Patton’s affidavit states that he is an attorney and experienced principal investor in the oil and gas industry. His affidavit sought to explain the10

industry practice of operators listing a total depth that was deeper than intended due

to cost

- saving reasons. Contrary to Appellees’ arguments, both of these affidavits were properly sworn to and state that they are “within [the] personal knowledge” of
the affian t. Furthermore, Patton’s statement that he reviewed documents does not violate the personal knowledge requirement. We conclude that the trial court did not abuse its discretion in deciding that Barden ’s and Patton’s affidavits adequately
demonstrated the ir personal knowledge. With respect to Appellees ’ contention that the affidavits are conclusory , they specifically complain in their brief about the following statement in both aff i davits: “Greeheyco, Inc. has complied with the Continuance [sic] Drilling Clause of Paragraph 10 in the Lease, and the Lease would have still be en in full force and effect on December 4, 2015 . . . .” Affidavits containing conclusory statements that fail to provide the underlying facts to support the conclusion are not proper summary judgment evidence. Elizondo v . Krist , 415 S.W.3d 259, 264 (Tex. 2013); Gail , 343
S.W.3d at 523. However, the trial court did not give Greeheyco’s affidavits conclusive effect because the trial court granted Appellees’ motion for summary judgment. Accordingly, we do not reach Appellees’ contention that the trial court erred by not overruling their objection that the affidavits were conclusory. We overrule Appellees’ first cross

- issue

. Summary Judgment
We now address Greeheyco’s remaining issues
, which derive from the trial
court’s grant of summary judgment to Appellees. Appellees fil ed suit alleging a claim for trespass to try title

. Appellees then filed a combined traditional and no

evidence motion for summary judgment. The trial court grant ed the motion on unspecified grounds. A grant of s ummary judgment is reviewed de novo on appeal. First United Pentecostal Church of Beaumont v. Parker , 514 S.W.3d 214, 219 (Tex. 2017).11

When the trial court’s order fails to specify the grounds for its summary judgment, we will affirm if any of the theories are meritorious. Provident Life & Acc ident Ins.
Co. v. Knott , 128 S.W.3d 211, 216 (Tex. 2003). “If a party moves for summary judgment on both traditional and no

- evidence grounds, as the parties did here, we
first consider the no

- evidence motion.” Lightning Oil Co. v. Anadarko E&P Onshore, LLC , 520 S.W.3d 39, 45 (Tex. 2017).
No

- Evidence Motion for Partial Summary Judgment In its first issue, Greeheyco contends that a no

- evidence motion for summary judgment was not proper because Appellees had the burden of proof on thei r trespass to try title claim. We agree. Rule 166a(i) permits a party to move for “ summary judgment on the ground that there is no evidence of one or more essential elements
of a cl aim or defense on which an adverse party would have the burden of proof at trial.” T EX

. R. C IV

. P. 166a(i). Therefore, only a party without the burden of proof may move for a no

- evidence summary judgment. See id. ; Estate of Smith v. Ector
C ty. Appraisal Dist. , 480 S.W.3d 796, 801 (Tex. App.

— Eastland 2015, pet. denied). As indicated by the live pleadings, Appellees sought title to and possession of the mineral estate through a trespass to try title suit. See T EX

. R. C IV

. P. 783. A trespass to try title claim is the statutory vehicle used to determine title to real property. T EX

. P ROP

. C ODE A NN

. § 22.001(a) (West 2014 ) ; see Teon Mgmt

. , LLC v. Turquoise Bay Corp. , 357 S.W.3d 719, 723 (Tex. App.

— Eastland 2011, pet. denied). The plaintiff has the burden to establish its title to the disputed property.
See Martin v. Amerman , 133 S.W.3d 262, 265 (Tex. 2004)

. “ [ A ] plaintiff [must] prevail on the superiority of his title, not on the weakness of a defendant’s title.” Id

. In A ppellees’ motion for summary judgment, they assert ed that the l ease termina ted according to its own terms. Within the no

- evidence portion of the motion, Appellees asserted, “Defendant has produced no evidence that any oil or gas was being produced from sa id land on July 29, 2015, or that the lease was otherwise12

maintained in effect pursuant to its provisions.” However, this contention places a burden on Greeheyco to present evidence to rebut a claim upon which it does not have the burden of proof . This i s contrary to the procedure for a no

- evidence motion for summary judgment. See T EX

. R. C IV . P. 166a(i). Appellees rely on Martin v. McDonnold 4 for the proposition that “a plea of ‘not guilty’ in a trespass to try title case does not mean that a ‘no evidence’ motion for summary judgment cannot be gran ted in favor of the plaintiff.” However, th eir
reliance on McDonnold is misplaced. In that case , the plaintiff’s no

- evidence motion attacked the defendant’s affirmative defense of limitations and claim of lease repudiation, which were matters for which the non

- movant defendant would have the burden of proof at trial. M cDonnold , 247 S.W.3d at 228. Appellees asserted a n o

- evidence motion for summary judgment against
Greehe yco on Appellees’ trespass to try title claim. A ppellees, as the plaintiffs, have the burden of proof on this claim. As such, they were not entitled to seek a no

evidence summary judgment on that claim. See Estate of Smith , 480 S.W.3d at 801 ; see also Nowak v. DAS I

nv. Corp. , 110 S.W.3d 677, 680 (Tex. App.

— Houston [14 th
Dist. ] 2003, no pet.) (“[I]f a party were able to file a no

- evidence motion on their own cause of action, it wo uld be tantamount to allowing them to prevail without ever proving the elements of their cause of action.”). To t he extent that the trial court granted summary judgment on Appellees’ no

- evidence motion, we sustain Greeheyco’s first issue.
Traditional Moti on for Partial Summary Judgment Greeheyco’s third and fourth issues address Appellees’ traditional motion for summary judgment

. A party moving for traditional summary judgment bears the burden of proving that there is no genuine issue of material fact as to at least one essential element of the cause of action being asserted and that it is entitled to

4 247 S.W.3d 224, 233

– 37 (Tex. App.

— El Paso 2006, no pet.).13

judgment as a matter of law. T EX

. R. C IV

. P . 166a(c); Nassar v. Liberty Mut. Fire
Ins. Co. , 508 S.W.3d 254, 257 (Tex. 2017). If the movant initially establishes a right to summary judgment on the issues expressly presented in the motion, then the burden shifts to the nonmovant to pre sent to the trial court any issues or evidence that would preclude summary judgment. See City of Houston v. Clear Creek Basin
Auth. , 589 S.W.2d 671, 678

– 79 (Tex. 1979). Wh en reviewing a traditional motion for summary judgment, we review the evidence in t he light most favorable to the nonmovant, indulge every reasonable inference in favor of the nonmovant, and resolve any doubts against the motion. City of Keller v. Wilson , 168 S.W.3d 802, 824 (Tex. 2005). In its third issue, Greeheyco contends that ther e is a fact ques tion regarding
the term s of the l ease. Specifically, Greeheyco asserts that Bellah’s affidavit, which avers that the language in the unsigned/unfiled lease matches the language in the signed/illegible l ease, does not conclusively establish the terms of the lease because Bellah is an interested witness. We disagree. “A summary judgment may be based on uncontroverted testimonial evidence
of an interested witness .

. . if the evidence is clear, positive and direct, otherwise
credible and free from contradictions and inconsistencies, and could ha ve been readily controverted.” T EX

. R. C IV

. P. 166a(c). Bellah’ s testimony was clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and readily could ha ve been controverted. Furthermore, Greeheyco offered no controverting evidence concerning the terms of the original lease. To the contrary, the language of the continuous drilling clause cited by Greeheyco in its response to the motion for summary judgm ent is identical to the language in the unsigned lease a ttached to Bellah’s affidavit. An affida vit may be “readily
controverted ” if it can be effectively countered by opposing evidence as opposed to
a mere rebuttal. Casso v. Brand , 776 S.W.2d 551, 558 ( Tex. 1989); see also First14

Nat ’l Bank in Munday v. Lubbock Feeders, L.P. , 183 S.W.3d 875, 882 (Tex. App.

— Eastland 2006, pet. denied). Thus, even if Bellah was an interested witness, the trial
court was entitled to conclude that his affidavit and the attac hments to it established the terms of the original lease. See William Marsh Rice Univ. v. Refaey , 495 S.W.3d 531, 537

– 38 (Tex. App.

— Houston [14th Dist.] 2016, pet. denied)

. We overrule Greeheyco’s third issue. In its fourth issue, Greeheyco contends th at there are genuine issues of

mater ial fact regarding whether the l ease has expired. Greeheyco contends that the
affidavit s it submitted established that there are material fact question s that preclude summary judgment. We agree. Appellees asserted that the continuous drilling clause did not perpetuate the
l ease beyond July 29, 2015, for the following reasons: ( 1) Greeheyco was not engaged in drilling for oil or gas at the end of the primary term ; ( 2) the First Brown
South Well was insufficient to invoke the continuous drilling clause ; and ( 3) more than 120 days elapsed before the Second Brown So uth Well was actually drilled. There is no dispute that the primary term of the lea se (as amended) expired on July 29, 2015, that producti on was not occurring on that date, and that Greeheyco was not engaged in drilling on that date. Accordingly, there are two questions presented for this court’s consideration: ( 1) the effect of the First Brown South Well with respect to the continuous dril ling clau se and ( 2) the effect of Greeheyco’s
efforts beginning on November 1 2 to prepare for drilling the Second Brown South
Well. Both of these questions require an interpretation of the lease and the
amendment to the lease. “An oil and gas lease is a contract, and its terms are interpreted as such.” Tittizer v. Union Gas Corp. , 171 S.W.3d 857, 860 (Tex. 2005)

. We review and

construe mineral leases de novo, and this court’s objective in doing so is to ascertain the parties’ intent as expressed within the lease ’s four corners. Endeavor Energy15

Res., L.P. v. Discovery Operating, Inc. , No. 15

- 0155, 2018 WL 1770290, at *3 (Tex. Apr. 13, 2018) (citing Anadarko Petroleum Corp. v. Thompson , 94 S.W.3d 550, 554 (Tex. 2002) ). In construing an oil and gas lease
, w e seek to enforce the intention of the par ties as expressed in the lease. Tittizer , 171 S.W.3d at 860. “ As with contracts generally, the parties ar e free to decide their contract’s terms, and the law’ s ‘ strong public poli cy favoring freedom of contract’ compels courts to ‘respect and enforce’ the terms on which the parties have agreed. ” Endeavor
, 2018 WL 1770290, at *3 (quoting Phila. Indem. Ins. Co. v. White , 490 S.W.3d 468, 471 (Tex. 2016) ).
The lease’s continuous drilling clause provided as follows: If at the expiration of the Primary Term of this Lease, oil or gas are not being produced on the Leased Premises or on lands pooled therewith, but the Lessee is then engaged in drilling for oil or gas
, or has within the last 120 days prior to the end of the primary term completed a well as productive or a Dry Hole, then this Lease shall continue in force so long as drilling o perations are being continuously prosecuted on the Lease Premises or on lands pooled therewith; and drilling operations

s hall be considered to be continuously prosecuted if not more than one hundred twenty (120) days shall elapse between the cessation of drilling operations of one well to its total depth and the beginning of operations for the drilling of a subsequent well. For the purpose of this Lease, this shall be known as “continuous drilling operations” and defined as drilling which must be completed to a minimum depth of 1,000 feet following within no more than one hundred twenty (120) days after cessation of drilling operations from the previous well to its total depth on the Leased Premises. If oil or gas shall be discovered and produced from any such well or wells drilled or being drilled at or after the expirations of the Primary Term of this Lease, this Lease sha ll continue in force so long as oil or gas shall be produced from the Leased Premises pursuant to the provisions hereof. The amendment to the lease provided in relevant part as follows: Lessee relinquishes, releases and surrenders to the Successor Lessors the formations above the top of the Caddo Formation, preserving however, the right to explore, penetrate, drill, complete and produce through such formation s in an effort to explore, develop and produce from all formations below such point. It is provide d however, that16

notwithstanding the release of the formations above the Caddo formation a well drilled to a minimum depth of 1,000 feet shall still constitute “continuous drilling operations” as defined in in Paragraph 10

. of the Lease. The amendment also provided that its terms superseded any conflictin g terms in the original lease. The Effect of the First Brown South Well Appellees initially assert that the drilling of the First Brown South Well was
ineffective to trigger the continuou s drilling clause. They base this assertion on the contention that the well was not completed as either a producing well or a dry hole. Appellees asserted as follows in their motion for summary judgment with respect to the First Brown South Well: “[Greeh eyco] did not complete a productive well, nor did it drill to the permitted total depth and complete a well as a dry hole. All that [Greeheyco] did was drill a hole to 1,050 feet, sto p, and move off the location.” Appellees’ contention is premised on the ir interpretation of the lease. The “operative” portion of the continuous drilling provision reads as follows:
If

. . . the Lessee

. . . has within the last 120 days prior to the end of the primary term completed a well as productive or a Dry Hole, then t his Lease shall continue in force so long as drilling operations are being continuously prosecuted on the Lease Premises or on lands pooled therewith; and drilling operations shall be considered to be continuously prosecuted if not more than one hundred tw enty (120) days shall elapse between the cessation of drilling operations of one well to its total depth and the beginning of operations for the drilling of a subsequent well. 5

T his operative portion was immediately followed by this definition: For the purpose of this Lease, this shall be known as “continuous drilling operations” and defined as drilling which must be completed to a minimum depth of 1,000 feet following within no more than one

5 For identification purposes, we will refer to this portion of the continuous drill clause as the “operative portion.”17

hundred twenty (120) days after cessation of drilling operations from the previous well to its total depth on the Leased Premises. 6

T he parties disagree over the portions of the continuous drilling clause to which this definition applies. Appellees assert that , as a matter of law, the definition only applie s to the second well ( the well to be drilled withi n 120 days after the first well ) and not the first well (the well drilled within 120 days prior to the expiration of the primary term). We disagree. With respect to the first well, t he operative portion of the continuous drilling
clause requires that it has to be drilled to its total depth within 120 days prior to the expiration of the primary term in order to invoke the continuous drilling clause

. T hus, t he date that the first well is drilled to its tot al depth triggers the beginning of
the 120

- day period for the second well. Appellees place an emphasis on the phrase “total depth” concerning the first well

. As noted previously, Appellees contend that that the minimum depth of 1,000 feet set out in the definition does not apply to the first well. Appellees cite Modern Expl., Inc. v. Maddison , 708 S.W.2d 872, 876 (Tex. App.

— Corpus Christi 1986, no writ)
, for the proposition that “total depth” means the depth at which oil or gas has been reached for a pro ducing well. For a dry hole, Appellees assert that “total depth” means the “planned total depth” listed
on the Commission’s drilling permit. Based upon these interpretations, Appellees assert that the First Brown South Well is simply “a hole in the ground” that does not
invoke t he continuous drilling clause. We interpret technical words and phrase s according to the understanding of
the busine ss individuals who use them

— absent evidence that a different interpretation was intended. Exxon Corp. v. Emerald Oil & Gas Co., L.C. , 348 S.W.3d 194, 211 (Tex. 2011). In this instance, the continuous drilling clause

6 For identification purposes, we will refer to this portion of the continuous drill clause as the “definition portion.”18

provides a definition agreed to by the parties

. T he definition does not specify that it only applies to the second well. To the contrary, t he express language of the
definition specifies that the minimum depth of 1,000 feet applies to the first well
because it indicates that drilling a well to this minimum depth triggers the “following” 120

- day period for the second well “after cessation of drilling from the previous well to its total depth.” Furthermore, a leading oil and gas commentary defines “total depth” as simply “the greatest depth r eached by a well bore.” 8 Patrick H. Martin & Bruce M. Kramer, Williams & Meyers, Oil and Gas Law: Manual of
Oil and Gas Terms 1084 ( LexisNexis Matthew Bender 2017 ). If this definition of total depth is applied to the First Brown South Well, its total de pth was 1,050 feet, which exceeds the minimum drilling depth of 1,000 feet specified by the lease. Appellees assert that Greeheyco’s act of drilling the First Brown South W ell to only 1,050 feet should be ineffective to invoke the continuous drilling cla use because that was an insufficient depth to reach the Caddo formation and because all formations existing above the Caddo formation were re leased by the lease
amendment. However, the lease amendment specifically provided that

“ notwithstanding the release of the formations above the Caddo formation a well drilled to a minimum depth of 1,0 00 feet shall still constitute ‘continuous drilling operations’ as defined in Paragraph 10

. of the Lease. ” When parties use the phrase “notwithstanding ” in a contra ct, the y contemplate the possibility that other parts of their contract may conflict with that p rovision and they agree that th e “notwithstanding” provision must be given effect regardless of any contrary provisions of the contract

. See Helmerich & Payne Int ’l Drilling Co. v. Swift Energy Co. , 180 S.W.3d 635, 643 (Tex. App.

— Houston [14th Dist.] 2005, no pet.) ; see also Horseshoe Bay Resort, Ltd. v. CRVI CDP Portfolio, LLC , 415 S.W.3d 370, 384 (Tex. App.

— Eastland 2013, no pet.) (noting that “notwithstanding ” signals “superordinating language”). Thus, the lease amendment specifies that drilling to a19

minimum depth of 1,000 feet constitutes continuous drilling operations even though formations lying at that depth were released by the lease amendment. Addition ally,
the lease amendment clarifies that drilling to a minimum depth of 1,000 feet satisfies the continuous drilling clause. Accordingly, the drilling of the First Brown South Well to a depth in excess of 1,000 feet less than 120 days prior to the expiration of
the amended primary term was sufficient to raise a fact question that Greeheyco’s
actions triggered the start of the continuous drilling clause. Preparations for Drilling the Second Brown South Well Mantle stopped drilling the First Brown So uth Well on July 1 8. Appellees
assert that , as a matter of law, the continuous drilling provision does not extend the
lease because Greeheyco did not drill a subsequent well to at least a depth of 1,000
feet by November 15 , which is the 120th day after Ju ly 1 8. Appellees base this contention on the argument that the definition’s reference to a minimum depth of 1,000 feet applies to the second well such that it had to be drilled to 1,000 feet by
the 120 th day after drilling ceased on the first well

. 7 Conv ersely, Greeheyco
contends that it s actions starting on November 13 to prepare a well site for the
Second Brown South Well were sufficient to satisfy the continuous drilling clause. In making this assertion, Greeheyco asserts that that the minimum depth of 1,000
feet set out in the definition does not have to be satisfied within the 120

- day period with respect to the second well. Thus, the parties’ remaining dispute focuses on
whether the definition applies to the req uirements for the second well to be completed within the 120

- day period following the first well

. The operative portion of the continuous drilling clause provides that the lease
is extended if “no t more than one hundred twenty (120) days shall elapse betw een

7 Appellees assert in their second cross

- issue that Greeheyco waived its argument that the l ease was extended under the continuous drilling operations clause because it did not assert in the trial court that it drilled the Second Brown South Well to 1,000 feet by November 15. Thus, Appellees’ waiv er argument is based on their construction of the continuous drilling cla use with respect to the second well.20

the cessation of drilling operations of one well to its total depth and the beginning of operations for the drilling of a subsequent well ” ( e mphasis added)

. This italicized language specifie s that the beginning of operations for the drilling of a subs equent well is all that is required to occur within 120 days after the drilling of the first well

ceases

. If the definition’s minimum depth requirement of 1,000 feet is applied to the requirements for the second well, the phrase “ the beginning of operatio ns for the drilling of a subsequent well ” in the operative portion of the continuous drilling clause would be rendered meaningless. In construing a contract, “we must examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless.” Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am. , 341 S.W.3d 323, 333 (Tex. 2011)

. Accordingly, the terms of the continuous drilling clause do not conclusively establish that the minimum depth of 1,000 must be reached within the 120

- day period with respect to the second well. This construction of the continuous drilling clause compor ts with the usual wording of a continuous drilling clause. See 3 Patrick H. Martin & Bruce M. Kramer, Williams & Meyers, Oil and Gas Law § 617.2 (LexisNexis Matthew Bender
2017 ) (citing examples of continuous drilling clauses )

. Greeheyco’s summary judgm ent evidence established that three days before
the 120

- day term was to end, Greeheyco began building a road and constructing the drill location for the Second Brown South Well. Those preliminary operations were ongoing until December 4 when Greeheyco was ordered to leave. Greeheyco contends that this summary judgment evidence was sufficient to raise a fact question that it timely began operations for the drilling of a subsequent well. We agree. See Rippy Interests, LLC v. Nash , 475 S.W.3d 353, 361 (Tex. App.

— Waco 2014, pet. denied); Valence Operating Co. v. Anadarko Petroleum Corp. , 303 S.W.3d 435, 440 (Tex. App.

— Texarkana 2010, no pet.); Phillips v. Sun ex Oil & Gas Co. , 419 S.W.2d21

422, 427 (Tex. App.

—

Amarillo 1967, writ ref’d n.r.e.); Whelan v. R. Lacy, Inc. , 251 S.W.2d 175 (Tex. App.

— Texarkana 1952, writ ref’d n.r.e.). As noted in Valence Operating , “[a] ctual drilling is not necessary in order to comply with an obligation to commence operations for drilling as required by con tractual provisions in many oil and gas leases and joint operating agreements .” 303 S.W.3d at 44 0. “ Preparatory activities such as building access roads to the drill site, moving tools and equipment onto the drill site, providing a water supply, and simi lar activities are usually sufficient if they are performed with the bona fide intention to proceed with diligence to the completion of the well. ” Id

. We sustain Greeheyco’s fourth issue and overrule Appellees’ second cross

- issue. This Court’s Ruling
We are not to be taken to hold that the 1,000 foot requirement would never apply to the second well. We simply hold that, here, Appellees did not conclusively establish their entitlement to summary judgment. Therefore, w e reverse the judgment of the trial court, and we remand the cause for further proceedings consistent with this opinion.

JOHN M. BAILEY
JUSTICE

June 29 , 2018
Panel consists of: W illson, J., Bailey, J. , and Wright, S.C.J. 8

8 Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.