## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02
- 11
- 00378
- CV

DAVID J. KANTNER AND WIFE, SHERI K. KANTNER, JO N D. MATHE, DAVID MOORE, AND WIFE, SYLVIA MOORE, AND MICHAEL MORRIS AND WIFE, KIM MORRIS APPELLANTS

V.
CHESAPEAKE ENERGY C ORPORATION AND CHESAPEAKE EXPLORATI ON, LLC APPELLEES

------------ FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

------------ NO. 02
- 11
- 00379
- CV

BRENT MUSSELMAN AND WIFE, TERRI MUSSELMAN, JAM IE R. OLDHAM AND WIFE, JENEE L. OLDHAM, TOMMY D. OSB ORNE AND WIFE, LORI M. OSBORN E, AND MARK DEVEN PITT AND APPELLANTS2

WIFE, KRISTIN E. PIT T
V.
CHESAPEAKE EXPLORATI ON, LLC AND CHESAPEAKE ENERGY CORPORATION APPELLEES

------------ FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

------------ NO. 02
- 11
- 00 380
- CV

FRANCOIS PELLETIER AND WIFE, DARIE BERUBE, BILL J . RALSTON AND WIFE, MADALYN M. RALSTON, JOSEPH A. S IMON AND WIFE, KAY L. SIMON, 1 AND MARC G. WILSON AND WIFE, ROSE M. WILSON APPELLANTS

V.
CHESAPEAKE ENERGY CORPORATION AND CHESAPEAKE EXPLORAT ION, LLC APPELLEES

1 Kay L. Simon was named as an appellant in the notice of appeal, but she had previously nonsuited her claims against Appellees. Therefore, we dismiss her appeal for want of jurisdictio n. See Motor Vehicle Board of the Tex. Dep't of Transp. v. El Paso Indep. Auto. Dealers Ass'n, Inc. , 1 S.W.3d 108, 110 (Tex. 1999) ; Preston v. Am. Eagle Ins. Co ., 948 S.W.2d 18, 21 (Tex. App.

— Dallas 1997, no writ)

.3 ------------ FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

------------ NO. 02
- 11
- 00381
- CV

WARDELL HAMILTON, SR

. AND WIFE, DIANE HAMILTON ; BARBARA A. HARRIS; R EBECCA HERN AND EZ; WILLIAM D. KOLODZIE AND WIFE, MARY M. KOLODZIE A PPELLANTS

V.
CHESAPEAKE EXPLORATI ON, LLC AND CHESAPEAKE ENERGY CORPORATION APPELLEES

------------ FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

------------ NO. 02
- 11
- 00382
- CV

MATTHEW PLATTS, G.L. POTTS AND WIFE, JENNIFER POTTS , DEAN A. SCHUE RMAN AND WIFE, GINGER C. SCHUERMAN, AND JOHN G. WOODS APPELLANTS

V.
CHESAPEAKE ENERGY CORPORATION AND CHESAPEAKE EXPLORATI ON, LLC APPELLEES4 ------------ FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

------------ NO. 02
- 11
- 00383
- CV

JAMES M. REAV ES AND WIFE, TERRI E. REAVES; MAR K C. RICHMOND AND WIFE, DEBRA M. RICHMOND; AND CALVIN R. WASHINGTON AND WIFE, MAYRION A. WASHINGTO N APPELLANTS

V.
CHESAPEAKE EXPLORATI ON, LLC AND CHESAPEAKE ENERGY CORPORATION APPELLEES

------------ FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

------------ NO. 02
- 11
- 00384
- CV

HOWARD L. EASTER AND WIFE, GLENDA K. EASTER, GA RY L. ELLIOTT AND WIFE, KAYE T. ELLIOTT, JERRY D. FU SELIER AND WIFE, RHONDA M. FUSELIER, AND DAVID G. GARDNER AND WIFE, DONNA GARDNER APPEL LANTS

V.5

CHESAPEAKE ENERGY CORPORATION AND CHESAPEAKE EXPLORATI ON, LLC APPELLEES

------------ FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

------------ NO. 02
- 11
- 00385
- CV

JERRY L. SIMMANK, JR .; RICHARD D. WILSON AND WIFE, MARY D. WILSON; AND CARL E. YOUNG B L OOD AND WIFE, JENNIFER M. YOUNGBLO OD APPELLANTS

V.
CHESAPEAKE EXPLORATI ON, LLC AND CHESAPEAKE ENERGY CORPORATION APPELLEES

------------ FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

------------ NO. 02
- 11
- 00386
- CV

DAVID D. DE ES AND WIFE, SARAH M. DEES, JOHN ROBERT GRANT AND WIFE, BRENDA J. GRANT, ROBBIE GRIGGS , JR. AND WIFE JANICE T. GRIGG S, AND THOMAS CHARLES APPELLANTS6

HASENBECK AND WIFE MARY JOHNSON HASENBECK
V.
CHESAPEAKE ENERGY CORPORATION AND CHESAPEAKE EXPLORATI ON, LLC APPELLEES

------------ FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

------------ NO. 02
- 11
- 00387
- CV

JOHN C. BRIGHT AND WIFE HEATHER M. BRIGHT; L AND ON G. COX, JR. AND WIFE, PATRICIA M. COX; MERAL O. CRAWFO RD; FREDERICK EARL DAVIS AND WIFE, E LLEN J. DAVIS APPELLANTS

V.
CHESAPEAKE EXPLORATI ON, LLC AND CHESAPEAKE ENERGY CORPORATION APPELLEES

------------ FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

------------ NO. 02
- 11
- 00388
- CV7

RIC A. ALEX AND ER AND WIFE, JILL R. ALEX AND ER, ELAI NE AND ERS, FRANK AND REWS AND WIFE , LYNDA L. AND REWS, MURIEL B. BROOKS AUT HER, DALE C. BAKER AND WIFE, SHARI D. BAKER, DANNY E. B RAWNER AND WIFE, MARY ALICE BRAWNER, MELISSA LOU BROWN, SAM O. BRUCE, DAVID E. BRYANT AND WIFE, JANET L. BRYANT, JERRY ALLEN BUR NS AND WIFE, ELAYNE RENEE BURNS, LIONEL H. CAN TU AND PAULA A. CANTU, DAVI D NATHAN CHERNOW AND WIFE, TANYA E. CHERNOW, BRYAN B. CO RNISH AND WIFE, CHERYL A. CORN ISH, JOHN D. COSTA AND WIFE, JULIE A. COSTA, TANYA HYNS ON CROCKETT, DWAYNE DAN IEL AND WIFE, SHAWN A DANIEL, RICHARD B. DARMON, J R. AND WIFE, CYNTHIA L. DAR MON, DANIEL G. DARWIN AND WIFE, GAYLE E. DARWIN, SAL AM H. DAVID AND WIFE, WADDELL DAVID, JAMES HENRY D ONOVAN AND WIFE, CAROL ANNETTE DONOVAN, THOMAS J. D UCOTE AND WIFE, MITZI T. DUCOT E, DAVID GEORGE DUMAN AND WIFE, AND REA JANE DUMAN, GAYLE T. EUBANKS, DO UGLAS FORD AND WIFE, DELOIS FORD, RICKY D. FREE AND WIFE, SHARON D. FREE, CASE Y L. GLENDENNING AND WIFE, SUSAN S. GLENDENNING , MICHAEL C. HABBESTAD AND WIFE, SHAWNETTE C. HABBESTAD, MICHAEL H ALL AND WI FE, SADIE HALL, JOHN TODD APPELLANTS8

HAWKINS AND WIFE, SHANNON K. HAWKINS, EDWIN C. HELLER AND WIFE, DONNA L. HELLE R, MICHAEL EUWANE HELM, R AND ALL S. HENDRICKSEN AND WIFE, LISA L. HENDRI CKSEN, BILLY JACK HINDS AND WIFE, FAYE HINDS, JAMES R. HUNT, III AND WIFE, DENISE S. HUNT, RICKY HUTTO AND WIFE, DEBRA HUTTO, JOHN H. JACOB SON AND WIFE, MARY E. JACOBS ON, TIM JOHNS AND WIFE, BRENDA JOHNS, PAUL MARCUS J ONES AND WIFE, CAROLYN MARY JONES, AND THE LURA JONES TRUST
V.
CHESAPEAKE ENERGY CORPORATION AND CHESAP EAKE EXPLORATION, LLC APPELLEES

------------ FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

------------ NO. 02
- 11
- 00389
- CV

PHILIP R. KASTNER AND WIFE, LAURA H. KASTNER; PA TRICK LANG; ARTHUR L. LAXS ON AND WIFE, S AND RA L. LAXSON; LEOLA SHARONA LEWI S; TIMOTHY LYNCH AND WIFE, RENETTE LYNCH; STEVEN L. MAD SEN AND WIFE, LAURA E. MADSE N; APPELLANTS9

CHARLES MARMOLEJO AND WIFE, ROSA VELIA MARMOLEJO ; JASON R. MENDOZA; ST EPHEN MICHLER; MARVEL BROW N; DAVID ALAN NIXON AND WIFE, DEBORAH NIXON; JEFFR EY RAY OAKLEY AND WIFE, TARA ANN OAKLEY; TIMOTHY J. O ’REILLY AND WIFE, MELISSA K. O’REILLY; LARRY W. PERMANN AND WIFE, GERTRUDE M. PERMANN; WILLIAM DAVID PHILLI PS AND WIFE, CYNTHIA M. PHI LLIPS; DAVID ALAN RAMSEY AN D WIFE, DEBRA LYNN RAMSEY; J AMES S. ROLLER, JR. AND WIFE , ROBIN L. ROLLER; FOUAD SAADE AND WIFE, SANDRES GHANTO US; RAJA SAADE AND WIFE, GUITTA SAADE; NOUHAD SAADE; RANDY SEYLER; JOHN EDWARD SHAW AND WIFE, MELISSA WH ORTON SHAW; MICHAEL P. SHE RMAN AND WIFE, MELISSA D. SHERMAN; MARK A. SMI TH AND WIFE, ELLA L. SMITH; JERRY W AYNE SMITH AND WIFE, CATHERINE HOUSE SMIT H; WILLIAM J. STONE AND WIFE, ALICE B. STONE; ARLY SURPRIS AND WIFE, PASCALE BA RLATIER

SURPIS; STEVEN R. TA TE AND WIFE, DEONNAH S. TAT E; RONALD C. TAYLOR AND WIFE, TERRI S. TAYLOR; RON ALD L. TOVSEN AND WIFE, MAR THA J. TOVSEN; RICK TOWNZEN AND WIFE, LEE ANNE TOWNZ EN; RICKY L. TRUITT AND WIFE, CYNTHIA A. TRUITT; M ICHAEL R. UNDERHILL AND WIFE, VICKY L. UNDERHILL; KEN L. VA UGHAN AND WIFE, PHYLLIS A. VAUGHAN;10

ROBERT J. WALKER AND WIFE, KERRY E. WALKER; ALE X D. WAYNE AND W IFE, KAREN L. WAYNE; RICHARD A. WE BER AND WIFE, DENISE A. WEBE R; MARC D. WHITE AND WIFE, R EIGH E. WHITE; ARTHUR W. WIK OFF AND WIFE, GLORIA A. WIKO FF; AND BRIAN J. WRIGHT
V.
CHESAPEAKE EXPLORATI ON, LLC AND CHESAPEAKE ENERGY CORPORATION APPE LLEES

------------ FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

------------ NO. 02
- 11
- 00390
- CV

SAMUEL V. ALLEN, JR. AND WIFE, CIGNORAY M. ALLEN, J EFFERY L. BR AND ON AND WIFE, BRENDA T. BR AND ON, BRYAN THOMAS HILGA RDNER AND WIFE, THERESA SUE HIL GAR DNER, JOSE E. RAMOS, SR. AND WIFE, BETTY J. RAMOS, JAME S M. WILSON AND WIFE, TANYA L. WILSON, AND CURTIS EUGENE WOOD APPELLANTS

V.11

CHESAPEAKE ENERGY CORP ORATION AND CHESAPEAKE EXPLORATI ON, L LC APPELLEES

------------ FROM THE 67TH DISTRICT C OURT OF TARRANT COUNTY

------------ 

### MEMORANDUM OPINION 2

------------ Appellants are owners of property in the Deer Creek Estates additi on to the City of Crowley, Texas who possess ed unleased mineral interests in their property. In 2007 or early 2008, to facilitate the negotiation of natural gas and
mineral leases en masse for Deer Creek Estates residents, a Deer Creek Estates Residents Oil & Gas Lease Committee (the Committee) was formed. Appellants argue that eventually, a contract was negotiated betwee n the Committee and Appellees Chesapeake Energy Corporation and Chesapeake Exploration, LLC (collectively , Chesapeake) . Appellants claim that two documents form the contract between the Committee and Chesapeake: the Supplemental Agreement Regarding Gas L ease 3 and the “form lease.” 4 Appellants concede

2 See Tex. R. App. P. 47.4.

3 The Suppleme ntal Agreement Regarding Gas Lease is a six

- paragraph document signed by Chesapeake and by Matthew B. Platts as “commi ttee member” for the Committee.12

that the Committee had no authority to bind any Appellant to the terms of the form lease; the form lease acknowledges that no Appellant is required to sign the form lease and provides that each Appellant has the right to negotiate his or her
own lease terms. No Appellant signed a lease with Chesapeake. Based on the downturn in the economy, Chesapeake decided to not go forward with leasing
minerals in the Dee r Creek Estates neighborhood. Appellants sued. Appellants ’ suit claimed that Chesapeake breached the

contract 5 that purportedly existed between the C ommittee and Chesapeake by not offering to each Appellant a mineral lease containing the form lease terms

–– a $27,000 per net mineral acre signing bonus, a 25.25% royalty, a three

- year term with no renewal option, and the signing bonus to be paid by a thirty

- day bank draft delivered at the time of signing. In their suit, Appellants sought Chesapeake’s specific performance of the unexecuted form lease s for e ach Appellant

. Concerning their breach of contract claim s , Appellants acknowledge that they did not execute the Supplemental Agreement Regarding Gas Lease or

4 The “form lease” is a template; it contains blanks for the date of execution, for the name of the Lesso r, for the address of the property, for the gross acreage, and for the signatures of the parties.

5 Appellants asserted other causes of action against Chesapeake as well, and the trial court granted summary judgment for Chesapeake on all of Appellants’ cl aims. On appeal, Appellants challenge only the summary judgment granted on their breach of contract claims; thus we need not, and do not, address the trial court’s summary judgments on Appellants’ other claims.13

execute any form lease . A ppellants nonetheless claim that they possess standing to sue Chesapeake for breach of contract because they are intended
third

- party beneficiaries of the purported contract between the Committee and Chesapeake. The trial court granted Chesapeake’s no

- evidence and traditional motions for summary judgment against all Appellant s. One of the grounds on which the trial court granted summary judgment for Chesapeake on Appel lants’
breach of contract claims wa s that no summary judgment evidence exist ed that Appellants are third

- party beneficiaries of any agreement between the Commit tee and Chesapeake. Appellants raise six issues in their appea l challenging the summary judgment granted for Chesapeake on their breach of contract claims. For purposes of our opinion, we assume that the Supplemental Agreement Regarding Gas Lease and th e form lease together constitute a contract between the Committee and Chesapeake. We therefore need not address Appellants’ first and second issues, including the six subissues set forth in Appellants’
second issue, arguing the existence of the contract

. See Tex. R. App. 47.1 (requiring appellate court to address only issues necessary to the disposition of the appeal). Additionally, for purposes of our opinion, we will consider the affidavits of Appellants ’ expert registered professional land surveyors, so we need not address Appellants’ third issue claiming that the trial court erred by sustaining objections to the se experts’ affidavits. Because we ultimately hold , as set forth below, that Appellant s lack standing to assert breach of contract claims14

aga inst Chesapeake, we also need not address their fifth and sixth issues concerning the statute of frauds. See, e.g. , State Farm Fire & Cas. Co. v. S.S. , 858 S.W.2d 374, 380 (Tex. 1993) (recognizing that appellate court must affirm summary judgment if any g round for summary judgment specifically found by the trial court supports summary judgment)

. Our disposition of these appeals is controlled by Maddox v. Vantage Energy LLC , No. 02

- 11

- 00210

- CV, 2012 WL 407269 (Tex. App.

–– Fort Worth Feb. 9, 2012, pet

. filed ). 6 In Maddox , we held under very similar facts that , although a nonprofit, unincorporated association named Southwest Fort Worth
Alliance, or SFWA , negotiated an agreement with Vantage Energy concerning a template uniform oil and gas lease to be used by Vantage for any leases it
obtained in the SFWA neighborhoods, the purported contract bet ween Vantage
and SFWA did not i dentify any third

- party beneficiaries with sufficient specificity
to confer third

- party

- beneficiary status

. 2012 WL 407269 , at *3

– 4. W e also held that, even if the purported contract between Vantage and SFWA could be construed as sufficiently identifying third

- party beneficiaries, any such beneficiaries nonetheless failed to qualify as third

- party beneficiaries because they were neither creditor beneficiaries nor donee beneficiaries. Id. at *5. Consequently, in Maddox , we assumed the existence of a contract between

6 See also Eastern Express, LP v. XTO Energy, Inc ., Nos. 02

- 10

- 00395

- CV, 02

- 10

- 00396

- CV, 02

- 10

- 00397

- CV, 2012 WL 1059080, at *3 (Tex. App.

–– Fort Worth Mar. 29, 2012, no pet. h.) (mem. op.) (applying Maddox to similar facts).15

SFWA and Vantage, held that the plaintiff s /appellants lacked third

- party

beneficiary status and accordingly lacked standing to assert a breach of any
SFWA /Vantage contract , and that plaintiffs/appellants’ breach

- of

- contract claims
should be dismissed

. We assume for purposes of this opin i on that a contract existed between the Committee and Chesapeake. Here, like in Maddox , App ellants are not parties to and did not sign the purported contract between the Committee and Chesapeake. Thus here, like in Maddox , Appellants may sue to enforce this purported contract only if they are third

- party beneficiaries of it. See id. at *3

– 4.
Here, like in Maddox , Appellants are not specifically named as third

- party beneficiaries in the purported contract they seek to enforce

. See id. Ap pellants are not identified by address, nor is any map attached to the purported contract that would i dentify Appellants by lot numbers or by addresses
in Deer Creek Estates. 7 N o summary judgment evidence exists identifying which Deer Creek Estates property owners possess ed unleased mineral interests ; counsel conceded during oral argument that around twen ty Deer Creek Estate property owners had leased their mineral interests

. We pointed out in Maddox
that the property owners had not cited and we had not located any Texas case “supporting the proposition that persons who in a contract are unnamed,

7 Although the Supplemental Agreement Regarding Gas Lease purports to have a map attached to it, the parties concede that no map was attached when the document was executed, and the summary judgment record contains no such map attached to the Supplemental Agreement.16

unidenti fied by address or by property description, and are unidentifiable by membership in a specifically defined , discrete, limited group can be intended by the contracting parties to be beneficiaries of that contract.” Id. at *4. 8 Thus, we
hold here, as we di d in Maddox , that the purported contract between the
Committee and Chesapeake does not sufficiently identify Appellants to enable
them to attain third

- party

- beneficiary status. 9 See Maddox , 2012 WL 407269 , at
*4.
T o the extent that, by some stretch, the p urported contract between t he
Committee and Chesapeake could be construed as specifically identifying these particular Appellants, the summary judgment evidence nonetheless conclusively

8 Appellants point to the case of Basic Capital Mgmt., Inc. v. Dyne x Commercial, Inc ., 348 S.W.3d 894, 900

– 01 (Tex. 2011) as supporting this proposition. The factual distinctions between Basic Capital and the present facts are extensive. Perhaps most importantly, in Basic Capital , two real estate trusts were held to be intended third

- party beneficiaries of loan agreements when the agreements provided that the lender would loan money to single asset, bankruptcy remote borrowing entities (SABREs) created for the benefit and protection of the lender and when the lender knew the SABREs were wholly owned by the two real estate trusts. Id . Here, the Committee is not a wholly

owned subsidiary of Appellants and in fact lacked the authority to even bind any Appellant to the Supplemental Agreement Regarding Gas Lease or to any fo rm lease. In short, unlike in Basic Capital where the agreement to loan money to the SABREs automatically benefited the owners of the SABREs

–– the two real estate trusts, here, the purported agreement between the Committee and Chesapeake does not automatic ally benefit Appellants; Appellants must determine their own lease terms and assign their mineral rights to Chesapeake.

9 We have reviewed the affidavits of registered professional land surveyors W. Thad Murley, III and Douglas L. Authur. Each affidavit st ates that the surveyor can identify the boundaries of the individual residential lots within Deer Creek Estates. Nothing in those affidavits or the exhibits to those affidavits adds to the identifiability of Appe llants in the alleged contract.17

establishes that Appellants are n ot donee beneficiaries of any contrac t between
the Committee and Chesapeake. 10 Appellants’ position is that they are donee
beneficiaries because Chesapeake’s offer to lease their minerals as set forth in the purported contract was a pure donation to them ; Appellants’ counsel explained during oral argument his theory that the offer itself, apart from any acceptance by Appellants, “had value” and caused Appellants to attain done e
third

- party

- beneficiary status. But Appellants have cited no case law, and we have located none, supporting the prop osition that an offer, absent an y acceptance of the offer, has value. Moreover, recovery of the value of the offer independent of any acceptance is not the relief Appellants seek; they seek specific performance by Chesapeake of the unexecuted form lease c ontaining the provisions for a $27,000 per net mineral acre signing bonus, a 25.25% royalty, a three

- year term with no renewal option, and the signing bonus to be paid by a thirty

- day bank draft delivered at the time of signing

. Thus, Appellants

are not a s a matter of law donee beneficiaries because the performance allegedly promised by Chesapeake that Appellants seek specific performance
of

–– the offer and execution of a lease in accordance with the terms of the form
lease

–– will, when rendered, not come as a pure donation but will be made in

10 Appella nts’ brief makes no argument that Appellants are creditor beneficiaries of the purported contract between the Committee and Chesapeake; and during oral argument, Appellants’ counsel conceded that Appellants were not creditor beneficiaries, so we need not a ddress Appellants’ creditor beneficiary status. Additionally, the affidavits of the two registered professional land surveyors have no impact on our donee beneficiary analysis.18

exchange for the le a se of Appellants’ mineral rights. See id. at *5. The summary judgment evidence conclusively establishes that Appellants

are not third

- party beneficiaries of any contract between the Committee and
Ch esapeake both because Appellants are not sufficiently identified to attain third

party

- beneficiary status and because Appellants are n ot donee beneficiaries of any contract between the Committee and Chesapeake and do not claim to be
creditor beneficiaries

. Having addressed Appellants’ fourth issue, the only issue necessary for the disposition of this appeal in light of our assumption that a contract existed between the Committee and Chesapeake and in light of our inclusion of Appellants’ expert surveyors’ r eports in our review of the summary judgment
evidence, we hold that Appellants lack standing to assert breach of contract claims against Chesapeake . We render judgment dismissing Appellants’ breach
of contract claims against Chesapeake.

SUE WALKER JUSTI CE PANEL: WALKER, MCCOY, and GABRIEL, JJ. DELIVERED: May 10, 2012