Aug 28, 2015
On May 18, 2015, Governor Greg Abbott signed into law House Bill 40, which pre-empts regulation of oil and gas activity at the municipal and local levels, and places that duty and power with the State. In addition, the newly enacted law requires that any local regulation of surface activity be “commercially reasonable,” and not effectively prohibit an oil and gas operation. The law defines commercially reasonable as “a condition that would allow a reasonably prudent operator to fully, effectively, and economically exploit, develop, produce, process, and transport oil and gas.”
HB 40 helps bring uniformity to oil & gas regulation. In praising the bill, Governor Abbott said “HB 40 does a profound job of helping to protect private property rights here in the state of Texas, ensuring those who own their own property will not have the heavy hand of local regulation deprive them of their rights. This law ensures that Texas avoids a patchwork quilt of regulations that differ from region to region, differ from county to county or city to city”.
HB 40 does preserve some local oversight, however. In this regard, the bill allows cities to retain their setback authority, and have some say over surface activities. The authority exercisable at the local level will be set forth in section 81.0523 of the Natural Resources Code.
In total, HB 40 offers regulatory certainty for the oil & gas industry, and appears to strike a balance between private mineral rights and local self-government. Despite its benefits, not all are happy with HB 40, as the new law prohibits enforcement of “fracking ban” laws that were passed by some local governments. The new law takes effect immediately.
Aug 15, 2014
The Texas Supreme Court recently handed down its long-awaited decision concerning the spoliation of evidence in Brookshire Brothers, Ltd. v. Jerry Aldridge, 2014 Tex. LEXIS 562 (Tex. 2014). Spoliation concerns the improper destruction of evidence, proof of which may give rise to a presumption that the missing evidence was unfavorable to the spoliator.
The underlying facts of the Aldridge case involve a slip-and-fall at a Brookshire Brothers grocery store. Id. at *5-6. The fall was recorded by a surveillance camera that recorded video in a continuous loop which, after thirty days, recorded over itself. Id. at *6. After the customer reported his injury to the grocery store, the grocery store decided to retain and copy approximately eight minutes of the video, beginning just before the customer entered the store, and ending shortly after the fall. Id at *7. The remainder of the video from that day was later recorded over pursuant to the grocery store’s retention policy. Id.
The slip-and-fall claimant asked the trial court to submit a spoliation instruction to the jury, arguing that Brookshire Brothers’ failure to preserve the additional video footage from the day of the fall amounted to spoliation of evidence. Id. at *9. Namely, he argued that such evidence would have been helpful to determining the key issue of whether the spill was on the floor long enough to give Brookshire Brothers a reasonable opportunity to discover it. Id. The trial court agreed, and submitted a spoliation instruction to the jury stating that if they found that spoliation had occurred, they could consider such spoliated evidence to have been unfavorable to Brookshire Brothers. Id. at *10-11.
On appeal, the Texas Supreme Court found that the trial court abused its discretion in submitting the spoliation instruction. Id. at *48. The Court held that “a party must intentionally spoliate evidence in order for a spoliation instruction to constitute an appropriate remedy.” Id. at *32. Here, the Court did not find any intentional destruction of evidence; rather, the evidence was simply destroyed pursuant to Brookshire Brothers’ retention policy. Id. at *44-46. Notably, the Court crafted a “narrow exception” for situations in which “a party’s negligent breach of its duty to reasonably preserve evidence irreparably prevents the nonspoliating party from having any meaningful opportunity to present a claim or defense.” Id. at *38.
Aldridge is a big win for Texas businesses and the Texas defense bar. As noted in the Aldridge dissent, the Court’s holding “potentially provides future litigants with a blueprint for successfully shielding themselves from spoliation liability: simply establish a document retention policy with a limited duration.” Id. at *78. It will be interesting to see how Texas courts handle spoliation issues in light of Aldridge, and it will particularly be interesting to see whether the “narrow exception” carved out for negligent destruction of evidence stays narrow, or is broadened.
Curnutt & Hafer, L.L.P. is an AV-rated law firm that concentrates its practice in civil trial law, with an emphasis on business and commercial litigation, oil and gas litigation, and select personal injury and wrongful death matters. The firm is located in Arlington, Texas-the heart of the Dallas-Fort Worth, Texas Metroplex-and provides legal services for a wide variety of clients, including Fortune 500 companies, small businesses, and former executives and partners.
Jan 23, 2014
Adverse possession refers to a process through which a person can gain legal title to real property belonging to another by possessing it for a certain length of time. While this doctrine may seem harsh at first glance (it essentially allows property to be taken away from the rightful owner), courts have justified the doctrine by noting that it encourages the efficient use of scarce resources and awards property rights to those who value it most. Typical situations involving adverse possession include property that has been fenced in by a neighbor, and property that has been abandoned for years.
The statutes governing adverse possession are found in Chapter 16 of the Texas Civil Practice & Remedies Code. Those statutes define adverse possession as “an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.” Thus, to prove a claim for adverse possession, a claimant must establish: (1) actual possession of property; (2) that is open and notorious; (3) that is peaceable; (4) under a claim of right; (5) that is adverse or hostile to the claim of the owner; and (6) consistent and continuous for the duration of the statutory period.
Cases involving adverse possession often hinge on whether the possession is “open and notorious” and “hostile to the claim of the owner.” “Open and notorious” means that the adverse possessor must visibly appropriate the property as to give notice to others that they claim a right to the property. This can be done by filing an affidavit in the county real property records setting forth the specific basis of adverse possession. It can also be accomplished by fencing the property or making other noticeable improvements that give notice of adverse possession (e.g., building a garage or driveway over the property). “Hostility” requires that the possession must be to the exclusion of all others. In this regard, shared possession of the property with the owner is insufficient to establish adverse possession. Likewise, possessing land at the permission of the owner does not establish adverse possession.
Perhaps the most important element in establishing a claim of adverse possession is whether possession has been consistent and continuous for the duration of the statutory period. The statutory periods for establishing a claim for adverse possession depend upon the circumstances of the claim. The three most common statutory periods involving adverse possession (the three-year statute, the five-year statute, and the ten-year statute) are discussed below. Keep in mind that possession must be continuous for the entire statutory period. Intermittent possession is insufficient.
The Three-Year Statute – Tex. Civ. Prac. & Rem. Code § 16.024 establishes a three-year statute of limitations for bringing suit against an adverse possessor who is possessing the property under title or color of title. This refers to a possessor who has some instrument purporting to convey title, but that in actuality does not convey title.
The Five-Year Statute – Tex. Civ. Prac. & Rem. Code § 16.024 establishes a five-year statute of limitations for brining suit against an adverse possessor who: (1) cultivates, enjoys, or uses the property; (2) pays taxes on the property; and (3) claims the property under a registered deed.
The Ten-Year Statute – Tex. Civ. Prac. & Rem. Code § 16.025, also known as the “catch-all” or “bare possession” statute, establishes a ten-year statute of limitations for brining suit against an adverse possessor who cultivates, uses, or enjoys the land. Unlike the three and five-year statutes, the ten-year statute does not require a written instrument purporting to convey title.
Owners faced with a situation where someone is trying to adversely possess their property have several remedies at their disposal. One remedy is to peaceably remove the possessor from their property. Another remedy is to file an affidavit in the county real property records disputing the adverse possessor’s claim. Of course, the owner may also need to file suit against the adverse possessor. For their part, adverse possessors often need to file suit to gain title by way of adverse possession.
The attorneys at Curnutt & Hafer, L.L.P. have experience in dealing with adverse possession claims, having represented both adverse possession claimants as well as owners opposing adverse possession. Please contact us at (817) 548-1000 to set up an initial consultation.
*Disclaimer – This article is provided for general information purposes only and is not offered as legal advice upon which anyone may rely. Consulting a lawyer relating to your individual needs is advisable before taking any action that has legal consequences. Curnutt & Hafer, L.L.P. does not represent you unless and until it has been retained and has agreed in writing to represent you.
Nov 8, 2013
Along with Daniel Mathis of Devon Energy, Doug Hafer will be speaking at an upcoming Strafford live webinar; the topic will be “Mineral Royalty Mispayments: A Discussion of Common Mispayment Scenarios and Applicable Law.” It is scheduled for Thursday, Nov. 21, 12pm-1:30pm CST. The panel will examine common oil and gas royalty mispayment scenarios and how those scenarios are often resolved in light of applicable law. The panel will offer best practices for resolving and, if needed, litigating royalty disputes. This presentation will touch on law from various jurisdictions, but will primarily discuss authority pertinent to Texas and Oklahoma. Get further information and to attend this program at half off.
Oct 3, 2013
The Houston-based First District Court of Appeals affirmed a summary judgement ruling obtained by Kelly J. Curnutt and Logan W. Simmons on behalf of their oil and gas client. The plaintiff, a surface owner, sought over $500,000 in damages, alleging a purported violation of section 91.504 of the Texas Natural Resources Code. Mr. Curnutt and Mr. Simmons were able to obtain summary judgment on those claims, arguing, among other things, that damages were not available under section 91.504. Mr. Curnutt and Mr. Simmons then successfully defended the surface owner’s motion for new trial. On appeal, the surface owner raised three issues: (1) that he had presented a fact issue to defeat summary judgment; (2) that he had asserted claims other than the purported violation of section 91.504; and (3) that he had not been properly served with certain special exceptions. The Court of Appeals overruled all three of the surface owner’s issues, affirming the summary judgment ruling in favor of Mr. Curnutt and Mr. Simmons’ oil and gas client.
