Tenants in Common: Accounting Deceptive Trade Practices Act: Texas

摘要

[Editor's note-It is the policy of the Oil and Gas Reporter not to report on opinions that do not appear in the official West reporter system but because the opinion on motion for rehearing is officially reported and appears following this case, the individual Reporter assigned to mis case has decided to publish both opinions. B.M.K.] Loyd is an unleased owner of a fractional mineral interest which is being developed by BoMar Oil & Gas. Loyd brings this action seeking damages under the Texas Deceptive Trade Practices Act, damages for fraud and an accounting as an unleased cotenant. Loyd claims that BoMar has improperly deducted a number of costs in doing the cotenancy accounting. The trial court grants most of Loyd's requested relief Held: affirmed as modified. In an analogous situation, a Texas court of appeals concluded that working interest owners who sign a joint operating agreement but then go non-consent as to a particular drilling operation are not "consumers under the DTPA. Hamilton v. Texas Oil & Gas Corp., 648 S.W.2d 316,76 0.&G.R. 300 (Tex. App.—El Paso 1982). Loyd argues that since he did not execute any agreement with BoMar, the operator, he is a consumer of the goods and services that BoMar acquires in its drilling operations. The court agrees with BoMar that an unleased cotenant does not meet the statutory definition of a consumer and thus, is not entitled to a recovery under the DTPA. In order to sustain the trial court's conclusion that Loyd can recover On the fraud claim, BoMar argues that Loyd did not prove one of the elements of the cause of action, namely that Loyd was induced to act or not act based on the alleged fraudulent misrepresentations. The foundation of this claim relates to the information provided to Loyd by BoMar at Loyd's insistence regarding the nature of the deductions that BoMar was using in its accounting. Loyd never relies on those representations that form the basis for this action. While overturning the DTPA and fraud claims, the trial court did not allow Loyd to recover on those claims as well as the accounting claim. As to the accounting claim, Loyd arges that BoMar improperly charged various administrative, overhead and engineering fees to the well in which Loyd has an unleased interest that are not specifically tied to work on that well. While noting that overhead expenses and administrative fees may be chargeable against the account of the unleased owner, such costs have to be reasonable and necessary. There is evidence in the record to support the jury's verdict of impropriety in the fees charged to the Loyd unleased interest. The court