Texas appellate attorney Ryan Clinton presented at the 50th Annual Ernest E. Smith Oil, Gas and Mineral Law Institute on April 4, 2004. Ryan presented on the topic “Estate Misconception & Presumed Grant: Navigating Mineral-Ownership Disputes after Van Dyke.” Ryan and DGC associate Laine Schmelzer also wrote a CLE paper on the topic viewable here.

The paper and speech presented a deep dive into the Supreme Court of Texas’s recent opinion in Van Dyke v. Navigator Group, 668 S.W.3d 353 (Tex. 2003). The Court’s landmark opinion substantially changed the rules for resolving mineral-ownership disputes in Texas. Ryan’s speech discussed what led to the Court’s decision, what the opinion means for current litigants, and what questions were left unanswered for us to litigate about for the next decade or more.

On Friday, July 28, 2023, DGC client COG Operating LLC prevailed in the El Paso Court of Appeals in Cactus Water Services, LLC v. COG Operating, LLC.  The case is a dispute over ownership of “produced water”—the liquid waste byproduct that remains after oil and gas is produced from the earth and most hydrocarbons are extracted from the oil-and-gas product stream.  Produced water is a heavily regulated substance that must be carefully handled in compliance with strict regulations.  After the mineral owners leased the oil and gas, the same mineral owners purported to convey rights to “produced water” to Cactus Water, which had no ability or infrastructure to handle the waste.  Nonetheless, Cactus Water demanded that COG pay Cactus Water for its “produced water” rights. 

DGC attorneys Jad Davis, Ryan Clinton, and Katie Petroski handled the case in the trial court, with Jad Davis successfully arguing COG’s motion for summary judgment. Ryan Clinton wrote the successful motion for summary judgment.  Davis, Clinton, and Petroski served as co-counsel with Baker Botts on the successful appeal.

Resources:
Court of Appeals opinion

In 2022, Ryan Clinton received a number of honors and awards recognizing his Texas appellate advocacy.

Ryan was named a “Super Lawyer” in Texas appellate law for the ninth time by Super Lawyers, a Thompson-Reuters publication. Before that, Ryan was ten times named a “Rising Star” by Super Lawyers. According to Super Lawyers, “[e]ach candidate is evaluated on 12 indicators of peer recognition and professional achievement,” and their “objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.”

Ryan was also once again named one of America’s “Best Lawyers” as published by U.S. News. According to Best Lawyers, “[r]ecognition by Best Lawyers is based entirely on peer review. Our methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area.”

Ryan was also again named a “Top Ranked Lawyer” in America as selected by The American Lawyer, a publication of American Legal Media.

On September 2, 2022, the Texas Supreme Court granted DGC client Petro Canyon Energy, LLC’s petition for review in a $54,500,000 dispute over the construction and application of a settlement-and-release provision in an acreage-swap agreement between oil-and-gas companies. The case will be argued to the Texas Supreme Court on November 30, 2022.

The primary issue is whether a comprehensive settlement-and-release provision—which states that each party releases the other, the other’s affiliates, and their “predecessors” from all liability related in any way to the conveyed oil-and-gas property—applied to a suit later brought against Petro Canyon’s predecessor in interest, title, rights, and liabilities. The trial court answered that question “yes.” But the Dallas Court of Appeals reversed, holding that releases of liability are “forfeitures” under Texas law and therefore their application must be rejected if there is any plausible way to construe them as not applying to a particular factual circumstance. The court of appeals ultimately held that the word “predecessor” in the release of liability must mean “corporate predecessor” only—even though Petro Canyon doesn’t have a formal corporate predecessor.

DGC shareholder Ryan Clinton was hired to prepare Petro Canyon’s appellate briefing at the Texas Supreme Court. The Court has granted Petro Canyon’s petition for review and set the case for oral argument in November.

Additional Resources:
Petro Canyon’s Brief on the Merits
Petro Canyon’s Reply Brief on the Merits
Dallas Court of Appeals Opinion

On August 10, 2022, the Austin Court of Appeals affirmed the trial court’s final judgment awarding a DGC client (and defendant) $51,195.13 in attorneys’ fees and $809.00 in court costs against a plaintiff that recovered nothing from the client. The plaintiff initially sued under a variety of legal theories and the client filed a motion to dismiss the suit pursuant to the Texas Citizens Participation Act. The trial court ultimately entered judgment that the plaintiff take nothing and ordered that the plaintiff pay the defendant’s attorneys’ fees and court costs of roughly $52,000. The Austin Court of Appeals rejected the plaintiff’s arguments on appeal and affirmed the trial court’s judgment. DGC shareholder Ryan Clinton handled the appeal.

Additional Resources:
Austin Court of Appeals Opinion
Appellee’s Brief

On March 11, 2022, the Texas Supreme Court sided with DGC client Energen Resources Corp. in a dispute over an accident during the drilling of a water well on an oil-and-gas lease. In the case, Energen Resources Corp. v. Wallace, No. 20-0451, a water well contractor and its employee sued oil-and-gas lessee Energen after suffering injuries in the accident. Appellate attorney Ryan Clinton wrote Energen’s briefing and presented oral argument at the Texas Supreme Court.

In the trial court, Energen moved to dismiss the plaintiff’s suit based on Chapter 95 of the Texas Civil Practice and Remedies Code. Chapter 95 limits liability for Texas commercial property owners sued for injuries arising from conditions or uses of improvements that the contractors were hired to construct or repair. The plaintiffs argued that Chapter 95 didn’t apply. Energen argued that Chapter 95 applied because, according to the plaintiffs’ own pleadings, the accident arose from a condition of the water well—the presence of natural gas. The Texas Supreme Court agreed with Energen and rendered judgment that the plaintiffs take nothing on their claims.

Additional Information:
Texas Supreme Court opinion
Energen Brief on the Merits
Energen Reply Brief on the Merits

On March 3, 2022, Ryan Clinton’s article “Agony of the 1/8th: The Consistently Inconsistent Role of ‘Estate Misconception’ and the ‘Legacy of the 1/8th Royalty’ in Texas Deed Construction” was published in the Texas State Bar’s Oil, Gas and Energy Resources Law Section Report.

The paper highlights key Texas appellate opinions on the “estate misconception” and “legacy of the 1/8th royalty” presumed-mistake doctrines, analyzes how judicial precedent on the topics has evolved over time, and identifies critical questions that remain unanswered by existing judicial precedent. 

Read the full article here: Estate Misconception Article

On February 18, 2022, the Texas Supreme Court denied the petition for review filed in Posse Energy, Ltd. v. Parsley Energy, LP, No. 21-0754. The Court’s decision to deny the petition for review lets stand DGC client Parsley Energy’s court of appeals victory in a dispute of ownership of working-interest rights in Upton County, Texas.

In this highly complicated dispute over oil-and-gas rights, plaintiff Posse Energy asserted that it—rather than Parsley and co-defendant Pacer Energy—owned the deep-depth working interest at issue. The case involved interpretations of multiple mineral deeds and complex contracts. Ultimately, the El Paso Court of Appeals determined that Parsley and Pacer owned the disputed working interests.

Additional Information:
Court of Appeals opinion
Parsley Energy’s Appellee’s Brief
Pacer & Parsley’s Joint Response to Petition for Review

On Friday, February 4, 2022, the Supreme Court of Texas sided with Davis, Gerald & Cremer client BlueStone Natural Resources II, LLC in a lawsuit over the meaning of an in-kind royalty clause in an oil-and-gas deed that created a non-participating royalty interest (“NPRI”). See Nettye Engler Energy, LP v. BlueStone Natural Resources II, LLC, No. 20-0639 (Tex. 2022). Appellate attorney Ryan Clinton wrote BlueStone’s briefing and presented oral argument for BlueStone before the Supreme Court of Texas.

In the case, the deed’s royalty clause required that the lessee deliver the royalty owner’s fraction of production “free of cost in the pipe line, if any, otherwise free of cost at the mouth of the well or mine[.]” The issue was whether the lessee was obligated to pay the royalty owner’s share of post-production costs incurred after gas was placed into third-party gathering lines but before the gas was transferred from the gathering lines to a larger transportation pipeline. BlueStone argued that the lessee could deduct costs incurred to process, compress, and transport the gas after it entered on-lease gathering pipelines, while Engler (the royalty owner) argued that BlueStone alone was responsible for paying all costs incurred before the gas was transferred to a larger pipeline far downstream from the lease.

The Supreme Court of Texas sided with BlueStone, holding that under the plain meaning of the deed’s royalty clause, BlueStone could deduct processing, compression, and transportation costs incurred within gathering pipelines.

Links for More Information:
SCOTX Opinion
BlueStone merits brief
Oral Argument video

In 2021, Ryan Clinton received a number of honors and awards recognizing his Texas appellate advocacy.

Ryan was named a “Super Lawyer” in Texas appellate law for the eighth time by Super Lawyers, a Thompson-Reuters publication. Before that, Ryan was ten times named a “Rising Star” by Super Lawyers. According to Super Lawyers, “[e]ach candidate is evaluated on 12 indicators of peer recognition and professional achievement,” and their “objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.”

Ryan was also named one of America’s “Best Lawyers” as published by U.S. News. According to Best Lawyers, “[r]ecognition by Best Lawyers is based entirely on peer review. Our methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area.”

Ryan was named a “Top Ranked Lawyer” in America as selected by The American Lawyer, a publication of American Legal Media.

Ryan was also named to Austin Monthly’s list of “Top Attorneys” in Austin in the appellate lawyer category.

In addition, Ryan received the “AV Preeminent” recognition for the “Highest Level of Professional Excellence” by Martindale-Hubbell.

On March 5, 2021, the Texas Supreme Court denied the plaintiffs’ petition for review in Evans Resources, L.P. v. Diamondback E&P, LLC, case No. 20-0648. The appeal involved a dispute over when surface-damages payments became due under an oil-and-gas surface-use agreement executed along with an oil-and-gas lease. DGC appellate lawyer Ryan Clinton handled the case at the Texas Supreme Court for Respondent Diamondback E&P.

The plaintiffs argued that the surface-use agreement contemplated prepayment of $500,000.00 each for multiple horizontal well pads. Diamondback, on the other hand, construed the surface-use agreement as requiring payments for only for each horizontal well actually constructed. The court of appeals sided with Diamondback and the plaintiffs appealed. The Texas Supreme Court denied the petition.

Additional Information:
Court of Appeals opinion
Diamondback’s Response to Petition for Review

Texas appellate attorney Ryan Clinton was honored to be named as one of the best lawyers in Austin, Texas by Austin Monthly in August 2020.

According to Austin Monthly, its list of top attorneys was created in partnership with a data-collection and research company and facilitated by online peer-review voting. Professionals cannot pay to be a part of the list. The list includes 258 lawyers, and Ryan was among 11 appellate attorneys recognized by the magazine.

Texas appellate lawyer Ryan Clinton was honored to submit an amicus curiae brief on behalf of the Texas Oil & Gas Association in the Bluestone Natural Resources II, LLC v. Randle case in the Supreme Court of Texas.

In its amicus brief, TXOGA urged the Court to grant Bluestone’s petition for review to provide guidance on how royalties should be calculated on lease language that requires royalty payment on the “gross value received” for minerals “at the well.” Two intermediate appellate courts have provided opposite answers to that question and prior Texas Supreme Court precedent appears at least partially in conflict. TXOGA went on to argue that a royalty clause requiring payment on “gross value received at the well” should be held to require payment on the value of all consideration received by the lessee for the minerals as valued at the wellhead.

The Court subsequently granted Bluestone’s petition for review.

TXOGA’s amicus curiae brief can be viewed here.

In January 2020, Texas appellate lawyer Ryan Clinton spoke at the State Bar of Texas Oil and Gas Disputes CLE in Houston, Texas. Ryan presented a paper titled “Forgive Us Our Trespass Law,” which discussed Texas’s confusing and often inconsistent precedent on trespass as it relates to the Texas oil-and-gas industry.

Among the topics covered include the elements of trespass law in Texas, the allocation of the burden of proof, and the various potential ways in which an oil-and-gas operator could face potential liability for subsurface trespass of either the surface estate or the mineral estate.

Ryan’s full paper can be viewed here:

Forgive Us Our Trespass Law: State Bar of Texas, Oil and Gas Disputes CLE (January 2020)

This year, Ryan Clinton was invited to join the membership of the Texas Bar College in recognition of his contributions to several recent continuing-legal-education conferences. The purpose of the College is “to recognize and encourage lawyers, paralegals, and judges, who maintain and enhance their professional skills and the quality of their service to the public by significant voluntary participation in legal education; to promote among members of the State Bar and the general public the educational and public purposes of the College and its members; to recognize and encourage outstanding service to the legal profession and the public; and to sponsor or otherwise assist in educational activities of significant merit and widespread relevance and applicability to the legal profession.” The College is the only organization in the United States formed for this purpose, is an honorary society of lawyers, and was chartered by the Supreme Court of Texas in 1981.

On January 25, 2019, the Texas Supreme Court denied Travis Central Appraisal District’s petition for writ of mandamus in a landmark Texas tax case that affects the rights of every real-property owner in the State of Texas. The Court’s decision leaves in place the Austin Court of Appeals’s decision in In re Catherine Tower LLC, which holds that in an “unequal appraisal” protest of a governmental tax appraisal, the governmental tax-appraising entity is not entitled to discover evidence of the property’s fair-market value. 553 S.W.3d 679 (Tex. App.—Austin 2018, orig. proceeding).

The decision is a victory for all Texas property owners. For years, governmental appraising entities have used the litigation-discovery process to uncover the purchase prices of Texas properties—even when the sales prices are irrelevant to the claims brought by the taxpayer. The appraising entities then use the information obtained in discovery to raise appraised values of all other comparable properties in the appraisal district. The Austin Court of Appeals’s decision puts an end to that practice when the information sought is irrelevant to the particular claim in litigation.

Texas law contemplates two separate types of challenges to governmental property-tax appraisals. The first, and most traditional challenge, is to contest the government’s calculation of a property’s fair-market value. The second, a lesser-known challenge, is to contest the government’s calculation of a property’s appraised value as disproportionate to the government’s appraised value of comparable properties properly adjusted for disparities. This is called an “unequal appraisal” challenge. The court of appeals held that evidence of a property’s fair-market value—including its sales price—is not relevant or discoverable in an “unequal appraisal” challenge brought under Texas Tax Code Section 42.26(a)(3).

Catherine Tower, LLC was represented by appellate counsel Ryan Clinton of Davis, Gerald & Cremer, and Lorri Michel of Michel Gray, both in Austin, Texas.

Resources:

Catherine Tower’s Response to Petition for Writ of Mandamus in the Texas Supreme Court
Catherine Tower’s Petition for Writ of Mandamus in the Austin Court of Appeals
Austin Court of Appeals’s Opinion