INTERESTING CASES: February 6, 2019
Sallee S. Smyth
1. Moore v. Moore, 2019 Tex. App. LEXIS 656 (Tex. App. – Eastland January 31, 2019) (Cause No. 11-16-00282-CV)
H and W divorced in 2005. In that proceeding W was represented by counsel. H executed a waiver of service and did not appear at the final hearing. A final decree was signed and included terms which divided “all oil, gas and other minerals standing in the name of the parties or either party” equally between H and W as part of a just and right division of the marital estate. The decree did not contain any listing of the oil and gas interests and did not confirm any separate property to either party. For unexplained reasons, H filed a motion for new trial which was denied but thereafter he did not pursue an appeal. In 2013, W discovered that H held certain oil and gas interests. W contacted the producers and demanded that they divert 50% of the royalty payments to her based on the decree terms. The producers issued division orders and notified H. H filed a motion to clarify the decree, requesting that the trial court confirm these interests to him as his separate property. W filed an answer asserting that the decree was clear. W further filed a motion to enforce claiming that H had fraudulently concealed the interests from her and requested the court to issue orders enforcing the property division by obligating H to executed deeds and pay over her share of royalties received. H asserted the affirmative defenses of statute of limitations, waiver, estoppel and laches and further claimed adverse possession interests in the minerals. After hearing the clarification request the court denied it finding that the interests were clearly awarded 50/50 as community property. The trial court granted W’s enforcement and ordered H to execute deeds, pay damages and awarded attorneys fees. H appealed. As to the statute of limitations claim, H asserted that W should have brought her claim for relief within 4 years because her claim was for execution of a lien on real property and/or for fraud. The COA determined W’s claims were neither and held that under TFC Chapter 9, while the legislature has provided a time limit on the right to enforce interests in tangible personal property (2 years) there is no corresponding statute of limitations regarding interests in real property. Because oil and gas mineral interests are considered real property, W had the right to bring suit more than 10 years after the divorce became final. As to the defense of waiver and estoppel, the COA found that once W discovered the interests in 2013, she contacted producers, she hired counsel and she researched her claims, all evidence of her affirmative acts to protect her property interests instead of waiving them. Further, as to laches, the COA determined that after discovery, W did not substantially delay bringing suit. Finally, H claimed that he had “adversely possessed” the mineral interests for the requisite period since the divorce entitling him to ownership. The COA found the evidence insufficient to establish H’s “possessory” interest in the minerals. Judgment affirmed.