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Samson Exploration, LLC v. T.S. Reed Properties, Inc.

Supreme Court of Texas

June 23, 2017

Samson Exploration, LLC (formerly Samson Lone Star, L.P.), Petitioner
v.
T.S. Reed Properties, Inc., et al., Respondents

          Argued February 28, 2017

         On Petitions for Review from the Court of Appeals for the Ninth District of Texas

          OPINION

          EVA M. GUZMAN, JUSTICE

         In this dispute involving mineral interests pooled for natural gas production, lessors and other stakeholders allege the lessee underpaid royalties owed to them under their mineral leases and pooling agreements.[1] One group of stakeholders asserts claims arising from the amendment of a pooled-unit designation that changed the unit's boundaries and withdrew a producing well from that unit (the Unpooling Stakeholders). Another group seeks to enforce a contractual obligation to pay royalties on a pooled unit that indisputably encompasses two producing wells, but one of those wells had already been included within the boundaries of another pooled unit (the Overlapping Unit Stakeholders).

         The issues presented largely center on the lessee's efforts to avoid a contractual obligation to pay royalties to the Overlapping Unit Stakeholders for production from a zone shared by the two pooled units. The lessee's main contract-avoidance theory is that (1) pooling necessarily effects a cross-conveyance of title; (2) a pooled unit is not valid unless title is cross-conveyed; (3) the production zone for the disputed well was previously committed to another pooled unit; (4) title cannot be conveyed twice; and (5) as a result, the subsequently pooled unit is invalid for purposes of the agreement to pay royalties. The Overlapping Unit Stakeholders dispute that cross-conveyance of title between lessors in a pooled unit is required to form a valid unit, but argue that any such requirement is limited to pooling effected by joint or community leases. The Overlapping Unit Stakeholders further argue, in the alternative, that cross-conveyance of title is merely a theory of implied or presumed contractual intent that can be-and was in this case-expressly disclaimed. As their primary argument, however, the Overlapping Unit Stakeholders assert that ineffective conveyance of title is not a valid defense to a breach-of-contract action.

         The lower courts held the agreement to pay royalties is enforceable, and we agree. Ineffective conveyance of title does not preclude the lessee's liability under a contract theory. With respect to the other issues raised in the cross-petitions for review, we hold:

• the lessee's quasi-estoppel and scrivener's error defenses to contract enforcement fail as a matter of law;
• the lessee is not entitled to recoup royalty payments from stakeholders in another pooled unit;
• our decision in Hooks v. Samson Lone Star, Ltd. Partnership[2] precludes the Unpooling Stakeholders' claims; and
• the court of appeals properly construed a proportionate-reduction clause to award royalties owed to the Overlapping Unit Stakeholders in accordance with their 50% mineral-interest ownership.

         Accordingly, we affirm the court of appeals' judgment.

         I. Factual and Procedural Background

         Samson Exploration, LLC (formerly Samson Lone Star, L.P.) is the lessee under adjacent East Texas mineral leases unilaterally pooled for natural gas development. The litigation over royalties owed under the mineral leases involves multiple stakeholders, three gas wells, and two pooled units. Samson was authorized to pool the leases, and the pooled units conform to the terms of the pooling provisions in the underlying leases, [3] but Samson's execution of the pooling unit designations generated a dispute about the production attributable to each pooled unit. The material facts are, for the most part, undisputed.

         A. Unpooling Claims

         In mid-2001, Samson created the Black Stone Minerals A No. 1 Gas Unit (Black Stone Minerals Unit), which had boundaries of 6, 000 to 13, 800 feet subsurface. Samson obtained production from two wells within the pooled unit's boundaries. The first well, which produced from 12, 304 feet to 12, 332 feet subsurface, was located on property leased by Black Stone Minerals Co. The second well was on the Joyce DuJay lease and produced from 13, 150 to 13, 176 feet subsurface. After obtaining production from both wells in the unit, Samson unilaterally amended the unit's boundaries, reducing the surface acreage committed to the unit and changing the pool's depths to 12, 400 feet and below. The amended unit was renamed the Joyce DuJay No. 1 Gas Unit (DuJay1/Amended Unit). Altering the pooling unit's boundaries had the effect of excluding the first well from the amended and renamed unit. Samson amended the unit in this manner because, despite a co-tenant's consent to pooling, Black Stone Minerals exercised a contractual right against pooling its mineral interests.

         After amendment and renaming, Samson did not attribute any production from the first well to the DuJay1/Amended Unit. Asserting breach-of-contract claims, stakeholders in the DuJay1/Amended Unit (the Unpooling Stakeholders) contend the amendment was improper and Samson therefore owes them royalties based on production from the first well. However, in a recent case involving the same circumstances, Hooks v. Samson Lone Star, Ltd. Partnership, we held the unpooling claims of similarly situated stakeholders were not viable because they had ratified the amendment altering the Black Stone Minerals Unit's boundaries and renaming it the DuJay1/Amended Unit.[4] Our holding, we said, was based "solely on the facts that [the stakeholders] received [from Samson] notice of an amendment to the unit designation, accepted royalties from the amended unit, and [did] not challenge the amended unit."[5]

         B. Overlapping Units Claims

         After establishing the DuJay1/Amended Unit, Samson drilled a third well, which, like the second well, was located on the Joyce DuJay lease. About ten months later, Samson retroactively designated a new unit covering the depth at which the third well was producing-12, 197 to 12, 342 feet. The new unit was named the Joyce DuJay A No. 1 Gas Unit (DuJay-A Unit or Overlapping Unit) and largely included the same surface area as the DuJay1/Amended Unit plus additional acreage from the T.S. Reed Properties lease (Reed lease). Though the third well produced above the DuJay1/Amended Unit's subsurface boundaries, the DuJay-A Unit's boundaries extend to "production occur[ing] below a depth of 12, 000 feet, " thus encompassing subsurface depths that overlap the depths in the DuJay1/Amended Unit. Under the express terms of the pooling instrument, the second well is included in both the DuJay1/Amended Unit and the later-formed DuJay-A Unit. Samson has paid royalties on the second well only to the DuJay1/Amended Unit stakeholders (Unpooling Stakeholders) and not the DuJay-A Unit stakeholders (Overlapping Unit Stakeholders). The Overlapping Unit Stakeholders contend Samson breached its obligations under the mineral lease and pooling unit designation by failing to pay royalties on production from the second well.[6]

         Though admitting the overlap, Samson disclaims any intent to create overlapping units, asserting the failure to designate a depth limitation to avoid any overlap was a mistake. Samson had the unilateral right to pool under the leases at issue and was the master of the unit designation describing the pooled unit. As originally drafted and as revised from time-to-time to add new leases to the unit, the pooling instrument specified a lower depth limitation of 12, 400 feet. Shortly before the unit designation was filed, however, Samson's outside counsel revised the instrument to remove the depth limitation and affirmatively changed the unitized depth to production "below a depth of 12, 000 feet." Before filing the designation with the county, Samson circulated it internally with the following handwritten notation on the routing memo: "Re-routed 7-2-03 / 12, 000' & below."

         In connection with this lawsuit, counsel could not recall-some ten years after the unit designation was filed with the county-"why the change was requested, " but denied any "intent to create a unit that overlapped with the same depths as the [DuJay1/Amended] Unit." He explained:

Given that the [DuJay1/Amended] Unit included some of the same surface acreage as the [DuJay-A] Unit, it would have been a mistake to include depths in the [DuJay-A] Unit that were already included in the [DuJay1/Amended] Unit. It was a scrivener's error for the unit designation of the [DuJay-A] Unit not to have stated a depth limitation of 12, 400 [feet].

         Though the unit designation allows for amendment "at any time, in order to correct any error herein, " the record reflects that Samson did not amend the unit to correct the alleged error.

         Samson contends the DuJay-A Unit pooling is invalid due to the overlap with the DuJay1/Amended Unit. In the alternative, Samson asserts (1) enforcement should be denied based on the Overlapping Unit Stakeholders' acceptance of payments limited to production on the third well or (2) the pooling designation should be reformed to specify a bottom depth limitation of 12, 400 feet due to a scrivener's error. If Samson is held to its agreement, Samson argues the DuJay1/Amended Unit stakeholders must forfeit, at least in part, payments for production from the second well, because imposing liability under the pooling agreement with the DuJay-A Unit stakeholders would have the practical effect of enlarging the DuJay1/Amended Unit and decreasing each stakeholder's net mineral interest in the larger pooled unit. Samson contends its working interest should not bear the burden of the royalty obligation.

         C. Lower Court Proceedings

         Some of the Unpooling Stakeholders sued Samson in 2004, and thereafter other Unpooling Stakeholders joined the suit along with the Overlapping Unit Stakeholders. Over the span of five years, the trial court rendered judgment on the parties' claims, counterclaims, and defenses in a series of interlocutory summary-judgment orders. In 2013, the trial court rendered final judgment, awarding nearly $450, 000 in breach-of-contract damages to the Unpooling Stakeholders and more than $2.5 million in breach-of-contract damages to the Overlapping Unit Stakeholders.[7] The latter award reflects a reduction in accordance with the Reed lease's proportionate-reduction clause, which was applied based on the Overlapping Unit Stakeholders' 50% mineral interest. The trial court also awarded pre-judgment interest in excess of $1.5 million and post-judgment interest at statutory and contractually specified rates.

         The parties cross-appealed, asserting various complaints about the trial court's summary judgment, a good number of which are not at issue on appeal to this Court. The court of appeals reversed the judgment favoring the Unpooling Stakeholders and rendered judgment for Samson based on our ratification holding in Hooks.[8] With regard to the Overlapping Unit Stakeholders, the court of appeals affirmed as to liability without reimbursement from the DuJay1/Amended Unit stakeholders[9] and affirmed the proportionate-reduction clause's application, [10] but concluded the damages award was excessive to the extent it was calculated based on production that had occurred before the Overlapping Unit existed.[11] The court reversed the damages award on that basis and remanded to the trial court on the damages issue. The court affirmed the judgment as to all non-appealing parties.

         No party was completely satisfied with the court of appeals' judgment, and consequently, each side petitioned for review.

         II. Discussion

         In this appeal, the issues have narrowed somewhat, though several issues are presented. Samson challenges the judgment in the Overlapping Unit Stakeholders' favor on the grounds of contract invalidity and the affirmative defenses of quasi-estoppel and reformation based on scrivener's error, complaining the court of appeals ignored its cross-conveyance-of-title argument and failed to consider evidence raising a fact issue on its affirmative defenses. Samson also claims a right of reimbursement against stakeholders in the DuJay1/Amended Unit to the extent Samson is liable to the Overlapping Unit Stakeholders, describing its royalty payments to the former as good-faith overpayments.

         The Unpooling Stakeholders urge error in the court of appeals' reliance on Hooks on both procedural and evidentiary bases, arguing (1) Samson failed to properly raise the ratification defense in the trial court, and (2) in the alternative, three of the Unpooling Stakeholders-Marlborough School, Simpson-Omohundro Foundation, and the estate of Vivian Burch-did not receive the same notice regarding amendment of the Black Stone Minerals Unit that we identified in Hooks as sufficient to support ratification. The Overlapping Unit Stakeholders contend the lower courts misconstrued the Reed lease and misapplied the proportionate-reduction clause, asserting the proportionate-reduction clause is not implicated because the lease conveyed only a 50% mineral interest.

         The foregoing issues were resolved on cross-motions for summary judgment. Accordingly, we apply well established standards of review, requiring rendition of judgment as a matter of law absent a genuine issue of material fact.[12] We review summary-judgment evidence "in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not."[13]

         A. Breach of Contract as a Viable Theory of Recovery

         "[O]il and gas leases in general, and pooling clauses in particular, are a matter of contract."[14]A lessee's authority to pool requires the lessor's consent, which is typically furnished via a pooling provision in the mineral lease.[15] Pooling is valid only if done "in accordance with the method and purposes specified in the lease."[16] A pooled unit that does not comply with the terms of the pooling agreement is invalid and unenforceable absent the lessor's ratification.[17] "The primary legal consequence of pooling is that production and operations anywhere on the pooled unit are treated as if they have taken place on each tract within the unit."[18] We have further said that pooling "'effects a cross-conveyance among the owners of minerals under the various tracts of royalty or minerals in a pool so that they all own undivided interests under the unitized tract, '"[19] but at the same time we have never determined "whether pooled units may overlap."[20] Leases may be validly pooled even when all royalty interests in the land are not pooled; for example, absent consent, the right of the executive to lease does not extend to pooling a nonparticipating royalty interest (NPRI), and failing such consent or subsequent ratification, an NPRI must be paid on a nonpooled basis while pooled interests share pro rata.[21] Thus a lessee may owe different royalty obligations with respect to the same lands.

         In this case, the parties agree Samson had authority to create the DuJay-A (Overlapping) Unit and the unit conforms to the lease requirements for pooling. Samson nevertheless asserts it has no obligation to pay royalties as promised because the DuJay-A Unit shares a zone with a previously pooled unit. Though governed by contract, pooling involves property rights. Samson's contract-invalidity argument centers on the contention that "it is impossible to cross-convey the same pooled lands, substances, and depths twice at the same time." Samson thus contends the DuJay-A pooling was invalid due to the overlap.

         The court of appeals construed Samson's somewhat vague defensive theory as a claim of impracticability.[22] Supervening impracticability excuses contract performance when, "after a contract is made, a party's performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary."[23] Samson does not challenge the court of appeals' holding that, as a matter of law, Samson was not without fault in frustrating performance. As the court of appeals explained, Samson unilaterally created the pooled unit and unilaterally defined its boundaries, without including a depth limitation.[24] The court of appeals declined to consider whether a cross-conveyance of title is required to effect a pooling or under what circumstances, because the case "was not tried as a trespass to try title case; instead, the trial court awarded contract damages under the DuJay-A claimants' breach of contract theory."[25]

         Asserting the court of appeals missed the point, Samson characterizes the matter as "akin to a defense of illegality, " asserting the law does not authorize overlapping pooled units and that enforcement should therefore be limited to "[the unit's] permissible boundaries-from 12, 000 feet to 12, 400 feet subsurface."[26] Arguing a contractual obligation to pay royalties on the second well cannot be enforced unless the unit designation was capable of effecting a cross-conveyance of title of the related subsurface depths, Samson says the court of appeals should have considered whether a cross-conveyance of title is effected rather than enforcing payment of a royalty under the leases as a contract.

         The Overlapping Unit Stakeholders view the cross-conveyance of title theory as a red herring because this is a contract dispute, not a title dispute. The stakeholders further assert that the cross-conveyance of title theory arises only in the context of joint and community leases[27] and argue the theory-one of presumed contractual intent[28]-is not implicated when pooled units are unilaterally formed by lessees pursuant to a mineral-lease pooling provision. The stakeholders assert, moreover, that cross-conveyance of title can be expressly disclaimed[29] and, as a result, pooling does not require a cross-conveyance between lessors.[30]

         In Texas, the cross-conveyancing theory originated as a theory of contractual intent in the context of joint or community leases.[31] Though we have never expressly considered whether cross-conveyance of title may be contractually disclaimed, we have observed that mineral owners may "protect[] their estates by express stipulation."[32] Under the law in Texas, pooling implicates both contract and property law-authority to pool emanates from contract but pooling agreements give rise to interests in realty.[33] The cross-conveyance theory of title can be critical, even "outcome determinative" as to some issues, [34] such as venue, [35] but Samson's argument in this case is a theoretical construct that holds no water. Considering the pertinent authority, we discern no impediment to enforcing Samson's obligations in this case under a contract theory even if the pooling designation failed to effect a conveyance of title.[36] The other issues the parties raise are interesting, but ultimately immaterial to the narrow issue presented.

         B. Quasi-Estoppel and Scrivener's Error

         Samson asserts two other defenses to contract enforcement: quasi-estoppel and scrivener's error. "Quasi-estoppel precludes a party from asserting, to another's disadvantage, a right inconsistent with a position previously taken."[37] "The doctrine applies when it would be unconscionable to allow a person to maintain a position inconsistent with one to which he acquiesced, or from which he accepted a benefit."[38] Samson cites evidence in the record that (1) following a request by Samson, the president of T.S. Reed Properties consented to amending the lease to allow pooling of less than the entire lease acreage "to form the Unit for the Joyce DuJay 'A' No.1 Unit Well" (singular; emphasis added); (2) before finalizing the unit designation that eliminated the DuJay-A Unit's lower-depth limitation to include the second well, Samson informed one of the parties (accurately at the time) that the pooled interest did not extend to the second well; and (3) the Overlapping Unit Stakeholders accepted royalty payments for years and signed division orders that were based only on the third well and that made no reference to the second well. Considering the first and second events occurred long before the revised pooling unit designation was altered and finalized without a depth limitation, these circumstances are no evidence of inconsistency. As to the third, accepting an underpayment is not inconsistent with claiming an entitlement to more. Nor is there anything in the division orders or accompanying the royalty payments that would suggest the Overlapping Unit Stakeholders were accepting the royalty payments on the third well in lieu of royalty payments on both the second and the third. Accordingly, the evidence Samson cites does not raise a material fact issue regarding estoppel.

         A "scrivener's failure to embody the true agreement of the parties in a written instrument" provides grounds for the equitable remedy of "reformation on the basis of mutual mistake."[39] Mutual mistake, which is the key to establishing a scrivener's error, requires evidence showing both parties were acting under the same misunderstanding regarding the same material fact.[40] The record in this case bears no such evidence. Despite evidence that elimination of a depth limitation was requested as an affirmative alteration and that Samson had notice of the change at the time the designation was filed with the county, it is probable, and perhaps likely, that altering the depth limitation in the pooled-unit designation was a mistake. The record, however, betrays no hint of mutual misunderstanding. The evidence establishes that Samson alone was responsible for delineating the pooled unit's boundaries and drafting and filing the pooled-unit designation. The record bears no evidence that the Overlapping Unit Stakeholders played any role in any of these matters. We therefore agree with the court of appeals that Samson's affirmative defenses fail as a matter of law.[41]

         C. Disgorgement of Royalty Payments

         Rather than paying royalties owed to the Overlapping Unit Stakeholders out of its working interest, Samson claims a right of reimbursement from stakeholders in the DuJay1/Amended Unit to the extent of any royalty obligation to the Overlapping Unit Stakeholders. Samson's reimbursement theory rests on the premise that enforcing its obligation to pay "has the practical effect of enlarging the [DuJay1/Amended] unit." Reframing its contractual obligation in this way, Samson contends pro-rata sharing in the enlarged pooled unit requires recalculation of the royalties owed to all those entitled to payment on production from the second well. Characterizing prior royalty payments to the DuJay1/Amended Unit stakeholders as "good faith overpayments, " Samson asserts the court of appeals erred in barring recovery based on the voluntary-payment rule.

         "'[M]oney voluntarily paid on a claim of right, with full knowledge of all the facts, in the absence of fraud, deception, duress, or compulsion, cannot be recovered back merely because the party at the time of payment was ignorant of or mistook the law as to his liability.'"[42] The court of appeals concluded "the summary judgment evidence conclusively shows that Samson's payments [to the DuJay1/Amended Unit stakeholders] were voluntary and that Samson made the payments . . . with full knowledge of the fact that it had created units that shared significant areas of their pools, including the zone being produced by one of its wells."[43] The court also observed that Samson "never exercised its authority to amend the designation of the declaration, even though the designation that it filed expressly provided that Samson reserved the right to do so 'in order to correct any error herein[.]'"[44] Further, "Samson did not allege that any of the [DuJay1/Amended Unit] claimants were guilty of any acts of fraud, that it paid the royalties under duress, or that it was compelled to pay royalties over its objection to doing so."[45] We concur in the court of appeals' assessment of the record.

         Samson did not attempt to correct the alleged error in the DuJay-A Unit pooling designation, though it had ample opportunity to do so. Samson, however, argues it paid royalties under duress and was prevented from rectifying the DuJay-A Unit's boundary error because, under the 2012 court of appeals' opinion in Samson Lone Star, Ltd. Partnership v. Hooks, [46] such an alteration might have constituted a breach of contract. In Samson Lone Star, the court stated:

Samson's redesignation of the [Black Stone Minerals] unit [would] constitute[] a breach of [certain leases] by Samson, as [would] its failure to pay the [lessees] royalties on the production from the [Black Stone Minerals] well unless the lessors agreed to the unpooling [but] by accepting royalty checks from the amended and redesignated pooling units, the [DuJay1/Amended] and DuJay A-1 units, which they had been notified replaced the [Black Stone Minerals] unit, and by not asserting any rights to royalties from the original [Black Stone Minerals] unit or making any timely claim against Samson in regard to the amendment and redesignation of [that] unit the [lessees] accepted and ratified the amendment and redesignation of the units.[47]

         Even if the suggestion of breach in Samson Lone Star were not dicta, as it appears to be, Samson's claim of duress is unavailing. Nearly nine years elapsed between the time Samson filed the designation and the time the opinion in Samson Lone Star was issued. During most of that time period, Samson was on notice that allocation of production in the DuJay1/Amended and DuJay-A units was at issue. Samson had actual notice that the depths between the two units overlapped, regardless of whether anyone had complained to Samson about that circumstance. Samson identifies no circumstances in the many years before Samson Lone Star came out suggesting royalties were paid to the DuJay1/Amended stakeholders under duress and no impediment to rectifying the omission of a lower-depth limitation, which its own witnesses testified was an obvious error, during that time period.

         We therefore hold Samson must bear its contractual obligation to pay royalties out of its working interest rather than seeking reimbursement from stakeholders in the DuJay1/Amended Unit. Though Samson bemoans the economic consequences of its actions, this is a circumstance of Samson's own making:

[The lessee, ] unfortunately, has agreed to pay royalties two ways. Our conscience, though aroused, is relieved by the recognition that [the lessee] was the scrivener, and lucidity was in its hands and with its pen. While it may be unusual to have double royalty agreements, contract conformity to the usual is not a judicial responsibility. To argue that we must enforce only reasonable contracts or contracts which reasonable men enter into, mistakes our function. We can and do enforce unreasonable contracts if they be clear. Unreasonable men make reasonable contracts and reasonable men may make unreasonable contracts.[48]

         D. Ratification

         The court of appeals held Samson conclusively established the Unpooling Stakeholders ratified the DuJay1/Amended Unit and therefore reversed and rendered judgment in Samson's favor on the unpooling claims.[49] The court rejected the stakeholders' argument that Samson waived the defense in the trial court by not presenting evidence of ratification in response to the stakeholders' traditional motion for partial summary judgment on liability.[50] Finding the matter preserved for appellate review, the court further determined "no significant distinction" existed between the record in this case and the acts we relied on in Hooks v. Samson Lone Star, L.P. to conclude the DuJay1/Amended Unit had been ratified and accepted.[51] By cross-petition for review, the Unpooling Stakeholders assert error on both counts.

         With regard to the preservation matter, the record shows Samson asserted ratification as an affirmative defense in its answer, asserted ratification as a liability bar in the conclusion and prayer of its response to the stakeholders' motion for summary judgment, and moved for summary judgment with supporting evidence after the trial court granted the Unpooling Stakeholders' motion but before rendition of final judgment. The stakeholders nevertheless assert Samson waived the defense by failing to bring forth supporting evidence in response to their motion for summary judgment. In the alternative, they assert that, based on the record in this case, Hooks does not support ratification of the DuJay1/Amended Unit as to three of the Unpooling Stakeholders-the Simpson-Omohundro Foundation, the Marlborough School (successor to Nancy Omohundro Long), and Vivian Burch (via executor, Gary Cruse)-because those parties did not receive the same notification regarding amendment of the Black Stone Minerals Unit that we found sufficient to sustain the ratification defense in Hooks. We address these matters in turn.

         1. Preservation

         In 2008, the trial court granted the Unpooling Stakeholders' motion for partial summary judgment on the unpooling claims, ordering Samson was liable for royalties on the first well as if the pool had not been amended, but leaving undetermined the amount of damages. In 2013, Samson submitted a motion for reconsideration of the interlocutory partial summary-judgment order, incorporating by reference a contemporaneously filed cross-motion for partial summary judgment asserting ratification and other affirmative defenses. The Unpooling Stakeholders argued Samson's motion was an untimely response to their motion for partial summary judgment because Samson was "required to raise all alleged defenses when [the Unpooling Stakeholders] originally filed their motions for summary judgment."

         The trial court referred both the motion for reconsideration and the motion for summary judgment to a special master for a hearing. Following a hearing, the parties filed post-submission briefing and correspondence on the merits, and the special master allowed the parties to file objections to his tentative rulings. Based on the special master's recommendation, the trial court expressly denied both motions.

         The court of appeals concluded Samson did not waive its ratification defense:

Because the trial court's 2008 order was interlocutory, and because Samson secured a ruling on its affirmative defense of ratification [before final judgment], the record shows that Samson presented its complaint to the trial court in a timely motion and that the court ruled on its request.[52]

         The Unpooling Stakeholders assert the court of appeals erred in relying on the general rules of preservation in Texas Rule of Appellate Procedure 33.1 without considering the more specific presentment requirements in Texas Rule of Civil Procedure 166a governing summary-judgment motions.

         Generally, to preserve a complaint for appellate review: (1) a party must complain to the trial court by a timely and specific request, objection, or motion that complies with applicable evidentiary, procedural, and appellate rules; and (2) the trial court must rule or refuse to rule on the request, objection, or motion.[53] At issue is Samson's compliance ...


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