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Scribner v. Wineinger

Court of Appeals of Texas, Second District, Fort Worth

October 17, 2019

Kevin Scribner, Appellant
v.
Randal Wineinger, Individually and d/b/a Akins Oil Company and Parra Oil and Gas, Inc., Appellees

          On Appeal from the 97th District Court Archer County, Texas Trial Court No. 2018-0094A-CV

          Before Sudderth, C.J.; Bassel and Womack, JJ.

          MEMORANDUM OPINION

          DABNEY BASSEL, JUSTICE

         I. Introduction

         This case concerns adverse possession of an oil-and-gas leasehold interest. In a single issue, Appellant Kevin Scribner challenges the trial court's order and final judgment granting summary judgment in favor of Appellees Randal Wineinger, Individually and d/b/a Akins Oil Company, and Parra Oil and Gas, Inc. on their affirmative defense of adverse possession and Parra's claim of limitations title (under the five-year statute). The trial court ordered that Scribner take nothing on his claims for trespass to try title, conversion, and trespass and declared that Parra was the owner of the oil-and-gas leasehold interest.

         Scribner does not dispute that the summary-judgment record establishes that Appellees' predecessors in title obtained adverse title to the leasehold interest before the conveyance of that interest to Appellees. Scribner contends that Appellees acknowledged his title in the lease at least three times when they sought an assignment of that interest and that the acknowledgements precluded any limitation title running in their favor. But even assuming that the acknowledgments occurred, they came too late to benefit Scribner because all the acts necessary for Appellees' predecessors to obtain adverse title and to divest Scribner of any claim to the lease occurred before the claimed acknowledgments. The acknowledgments did not stop the clock on the adverse claim because the clock had already run out before they occurred.

         Scribner also contends that Appellees' acknowledgements of his title raised a fact issue on whether Appellees' possession was adverse. An acknowledgement of title after the statutory bar may constitute evidence showing that an adverse claimant's possession was not adverse during the limitations period because the possessor must intend to appropriate the property. But that principle does not apply here because Appellees did not possess the leasehold interest during the limitations period. Accordingly, we affirm.

         II. Background

         A. The parties proffer alternative contentions regarding ownership of the leasehold interest.[1]

         In 1999, Scribner's father acquired an oil-and-gas leasehold interest arising by virtue of an oil-and-gas lease recorded in Archer County, Texas. The record reflects that Scribner's father conveyed all the working interest in the lease to him by virtue of a May 30, 2002 Assignment and Bill of Sale (2002 Assignment) filed of record in Archer County. Scribner contends that he did not know about the 2002 Assignment until 2016. He alleged that he had never transferred the working interest to any other person or entity and that he remains the owner.

         Wineinger contends that he previously held and Parra contends that it currently holds superior title to the leasehold interest because their predecessors acquired title through adverse possession under the five-year statute.[2] See Tex. Civ. Prac. & Rem. Code Ann. § 16.025. The summary-judgment evidence shows that on March 29, 2010, Louise Daniel, acting under the will of Scribner's father (then deceased), assigned the working interest and lease to Latigo Drilling, LLC (2010 Assignment). Appellees allege that although Scribner was present when Daniel executed and delivered the assignment of the lease to Latigo, Scribner did not assert any ownership to the lease at that time.

         The record reflects that a series of individuals and entities owned and assigned the leasehold interest following the 2010 Assignment:

• On October 8, 2010, Latigo assigned the working interest to Hanaco LLC.
• On September 10, 2012, Hanaco assigned one-third of the working interest to Duncan Oil Company, assigned one-third of the working interest to Gary Grace d/b/a Grace Services, and retained one-third of the working interest for itself.
• On May 15, 2014, Grace assigned its one-third of the working interest to A&G Operating, LLC.
• On June 13, 2016, Hanaco, Duncan, and A&G assigned 100% of the working interest to Wineinger and David Park, in their individual capacities.
• On October 1, 2016, Wineinger and Park assigned the working interest to Parra, a company in which they both own an interest.

         These assignments were recorded in Archer County.

         According to Appellees, Parra and each of its predecessors exclusively operated the lease, received all revenue (less royalty) from the lease, and paid all taxes attributable to the lease. They assert that Scribner, on the other hand, did not participate in the operations of the lease; did not make any expenditures for the lease; did not receive any revenue from the lease; and did not pay any taxes attributable to the lease.

         In June 2018, Scribner filed suit against Appellees asserting claims for trespass to try title, trespass to real property, and conversion. Scribner sought a determination that he holds superior title to the working interest, an accounting, and an award of damages. Appellees answered, asserting the affirmative defense of perfection of title by adverse possession under the five-year statute of limitations, citing section 16.025 of the Texas Civil Practice and Remedies Code (five-year statute). Parra also counterclaimed for trespass to try title, declaratory judgment, and suit to quiet title, seeking a declaration that it has a superior title by limitations.[3]

         B. Appellees moved for summary judgment on Scribner's claims and Parra's counterclaims, arguing that their predecessors acquired limitation title by adverse possession under the five-year statute.

         Appellees moved for traditional summary judgment, arguing that Scribner's claims were precluded by their predecessors' adverse possession and that Parra was the rightful, current owner of the leasehold interest. Appellees argued that the summary-judgment evidence satisfied each element of the five-year statute and that after tacking or stringing together all periods of possession of their predecessors since April 2010 (when Latigo began operating the lease), they had adversely possessed the lease by April 2015, and Scribner's claimed ownership in and right to possess the property had terminated in April 2015.

         Appellees requested that the trial court enter a judgment that Scribner take nothing on his trespass-to-try-title claim, arguing the evidence established the affirmative defense of limitations under the five-year statute as a matter of law. They also requested that the trial court enter a judgment that Scribner take nothing on his trespass and conversion claims, arguing that the evidence established that they had adversely possessed the lease in April 2015 under the five-year statute, thereby dispensing with the essential elements of these claims relating to Scribner's ownership or rights to possession. Parra also requested summary judgment on its counterclaims for trespass to try title, declaratory judgment, and suit to quiet title, arguing that the evidence established all elements to each counterclaim based on the evidence establishing title through adverse possession under the five-year statute.

         C. Scribner opposed summary judgment by arguing that Appellees acknowledged his title to the lease, precluding limitations from running in Appellees' favor and evidencing that their possession at any time was not adverse.

         In response to Appellees' motion, Scribner argued that there was "a genuine issue of material fact as to who owns the working interest" that precluded summary judgment. Scribner cited Tex-Wis Co. v. Johnson, 525 S.W.2d 232 (Tex. App.-Waco 1975), aff'd on other grounds, 534 S.W.2d 895 (Tex. 1976), for the proposition that a defendant's offer to buy land constitutes an acknowledgment in title in the plaintiff that precludes limitations from running in favor of the defendant and is evidence tending to show that any possession by the defendant is not adverse to the plaintiff. Scribner argued that Appellees acknowledged title in him when they contacted him at least three times to request that he execute a proposed assignment of his interests.

         First, Billy Elder is an attorney who represented Parra in June 2016 in connection with Parra's acquisition of leasehold interests in several leases situated in Archer County, including the lease at issue. In connection with that work, ...


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