party to the contract or have an assignment from a party to the contract. 38 Since Concho/Three Rivers were not parties to the contract via express assignment, they lacked privity and thus lacked standing to bring a cause of action for its breach . 39 The unambiguous language in the assignments of oil and gas leases from Samson to Three Rivers and from Three Rivers to Concho do not mention an express sale/assignment of the October 16, 2008 Letter or the cause of action for its breach. Courts will not consider extrinsic evidence in construing the intentions of the parties to an unambiguous assignment. 40 Since neither party has claimed the assignment from Samson to Three Rivers or the subsequent assignment from Three Rivers to Concho was ambiguous, this Court’s analysis is limited to the four corners of each assignment. 41 Those assignments do not expressly or impliedly contain any assignment of the October 16, 2008 Letter or the cause of action for its breach. In the end, it is inconceivable that Samson or Three Rivers could have included the October 16, 2008 Letter “contract” and contract claim in their respective assignments when, as noted by the appellate court in its opinion: “The record also reflects that Concho was unaware of Reece’s letter until December of 2013, six months after Ellison filed this suit.” 42 That is, Concho had no knowledge of the October 16, 2008 Letter at the time each assignment was made nor at any time before this lawsuit was filed. The Texas Supreme Court has been very clear, up to this case, that the assignment of real- property assets, including oil-and-gas leases such as the Sugg Lease, does not by implication include the assignment of any cause of action related to such leases because those causes of action, as well as the contracts themselves, are personal rights. There must be an express assignment of those personal rights. 43 Concho speculated that “surely” those assignments of “assets” would have included the 2008 Letter “contract,” but cited no evidence in
the record to support that speculation. The only way Concho could win that argument would be for this Court to declare a rule of law, contrary to Exxon Corp. v. Emerald Oil & Gas Co. L.C 44 ., that all personal contracts/causes of action would be deemed included in a sale of real-property assets. This Court has held otherwise, stating that the right to sue is a personal right that belongs to the person who owns the property at the time of the injury and the right to sue does not pass to a subsequent purchaser of the property unless there is an express assignment of the cause of action. 45 The record in this case (i) failed to prove that any assignment of the oil and gas leases included an express assignment of the October 16, 2008 Letter and/or the cause of action for the breach of it, and (ii) contained no competent proof that the October 16, 2008 Letter and the personal cause of action for breach of it were assigned first by Samson to Three Rivers and then by Three Rivers to Concho. RESULT: Concho had no standing to assert its breach-of-contract counterclaim of the October 16, 2008 Letter against Mrs. Ellison . With no standing, Concho’s breach-of-contract counterclaim fails as a matter of law, and accordingly, all relief, including attorney’s fees, should have been denied. This Court’s convoluted and incorrect reasoning to the contrary, stare decisis requires the Court to follow the above cited cases, especially Emerald, a case recently decided by this Court and apparently impliedly overruled by this case or factually (?) distinguished when, in fact and in law, there was no assignment [38] Ostrovitz & Gwinn, LLC v. First Specialty Ins. Co ., 393 S.W.3d 379, (Tex. App. - 2012, no pet.) [39] Pain Control Inst., Inc. v. GEICO Gen. Ins. Co. , 447 S.W.3d 893, 898 (Tex. App. - 2014, no pet.) [party must show that “the cause of action being assigned existed and was assigned”]) [40] Hughes v. CJM Res., LP , 640 S.W.3d 623, 628 (Tex. App. –2022, no pet.) [41] Hughes v. CJM Res., LP , 640 S.W.3d 623 (Tex. App. –2022, no pet.) [42] Ellison v. Samson Res. Co ., 13-17-00046-CV (Tex. App. Feb 10, 2022) at page 9 [43] Exxon Corp. v. Emerald Oil & Gas Co. L.C. , 331 S.W.3d 419 (Tex. 2010) [44] Exxon Corp. v. Emerald Oil & Gas Co. L.C. , 331 S.W.3d 419 (Tex. 2010) [45] Exxon Corp. v. Emerald Oil & Gas Co. L.C. , 331 S.W.3d 419 (Tex. 2010)
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N at i onal A ssociation of D i v i s i on O rder A nalys t s
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