the work product privilege did not apply to those title opinions that were not prepared as part of the preparation for litigation. The owners of the requested title opinions failed to establish which, if any, of the requested title opinions were prepared in connection with the instant lawsuit or any previous litigation and therefore failed their burden of establishing the work product privilege. It was also argued in the case, even if the title opinions had been protected, that such protection could be waived if the client company voluntarily disclosed the title opinions to third parties ie selling oil and gas leases and transferring the title opinions associated with the assigned leases. It was argued, and the trial court found, that any privilege which may have protected the title opinions had been waived. T.R.C.P. Rule 511 provides that a person waives the privilege “if he voluntarily discloses or consents to disclosure of any significant part of the privileged matter unless such disclosure itself is privileged.” If a matter for which a privilege is sought has been disclosed to a third party, thus raising the question of waiver of the privilege, the party asserting the privilege has the burden of proving that no waiver occurred. Jordan v. Court of Appeals for Fourth Supreme Judicial Dist ., 701 S.W.2d 644 (Tex. - 1985).
be adjudicated and possession vested (“title as against the world”). El Paso v. Long , 209 S. W. 2d. 950 (Tex. Civ. App. - 1947, writ ref’d n.r.e.) and Slattery v. Adams , 279 S. W. 2d. 445 (Tex. Civ. App. - 1955, no writ hist.) Any final judgment rendered in such an action is conclusive as to the title and right of possession against all persons claiming from, through or under the person(s) against whom the judgment is rendered. That is, the judgment is conclusive of all adjudicated claims to the land or claims that could have been set up by the losing party. Zapeda v. Rahn , 48 S. W. 212 (Tex. Civ. App. - 1898, writ ref’d.) and Pennington v. Pennington , 145 S. W. 2d. 688 (Tex. Civ. App. - 1940, no writ hist.) TTT Lawsuit is a procedure by which rival claims to title or right of possession may be adjudicated. King Ranch, Inc. v. Chapman , 118 S.W.3d 742 (Tex. 2003). To recover in a TTT Lawsuit, the plaintiff must recover upon the strength of his own title. Rogers v. Ricane Enter., Inc. , 884 S.W.2d 763 (Tex. 1994). The plaintiff may recover 1) by proving a regular chain of conveyances from the sovereign, 2) by proving a superior title out of a common source, 3) by proving title by limitations, or 4) by proving prior possession and that the possession has not been abandoned. Ruiz v. Stewart Mineral Corp ., 202 S.W.3d 242 (Tex.App. — 2006) Historically, where outstanding title requirements called for information which could never be completely verified and thus would continually expose the client company to potential liability (such as leasing the wrong party or not leasing enough of the correct parties), oil company lessees often requested the initiation of a TTT Lawsuit. In less than 5% of the cases participated in by the author or observed by the author (the author’s estimate), did one of the problematic parties respond to the litigation. Any response to the litigation affirmed the validity of the filing of the litigation as well as provided the opportunity for the client company to lease such parties’ interests via protection leases. After the litigation was affirmatively concluded, usually with no opposition, the client company was assured that its leasehold title to the oil and gas
Issue 3- Curing the “Un-curable” title
If a title to a tract of land is deemed unmarketable due to outstanding, unsatisfied title requirements or waived title requirements (making the title to the tract at issue un-marketable and thus defensible at best), can that title be made marketable via the judicial process? Yes, a marketable title can be legally affirmed by a Texas court. It was, not too long ago, at the beginning of the author’s legal career, that title to the oil and gas under tracts upon which a well was to be drilled was a marketable title. How? By the utilization of the Trespass To Try Title lawsuit (“TTT Lawsuit”) (Property Code §22.001 et seq (Vernon 1985). The purpose of the TTT Lawsuit is to provide the exclusive method of confirming and vesting title to real property. Hill v. Preston , 34 S. W. 2d. 780 (Sup. Ct. - 1931). The cause of action provides a procedure whereby all claimants to the title may
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G rowth T hrough E ducat i on - J uly / A ugus t / S ept ember 2023
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