from the facts. The appellate court, apparently sitting as the trier of fact in the third of the West Trilogy Cases, determined that only one conclusion could be deduced from the expert testimony – the maximum amount of gas in the reservoir as of the commencement date of injection of storage gas had been proven with reasonable certainty by Exxon. “However, where the nature of the subject matter of the experts’ testimony is such that the trier of fact must be guided solely by the opinion of experts in that scientific field, the opinions given by the expert witnesses may be regarded as conclusive if such expert opinion is otherwise credible and free from contradiction and inconsistency. Scott v. Liberty Mutual Ins. Co., 204 S.W.2d 16, 18 (Tex.Civ.App.- -1947, writ ref ’d n.r.e.); Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943 (1944).” Exxon Corp. v. West , 543 S.W.2d 667, 672 (Tex.Civ.App. - 1976) emphasis added In the author’s opinion, the last of the West Trilogy Cases does not completely address the quality of evidence that the Commingler must adduce at trial in order to a) shift the burden of proof to the Aggrieved Party and b) demonstrate the amount of oil and gas the Aggrieved Party is entitled to receive. The appellate court in this last West case appears to have ruled on the evidence and directly contradicted the trial court on the significance of the expert testimony presented by Exxon. Reasonable certainty is not the same burden of proof as proving other types of damages where no margin of error in the calculation of damages is allowed. Rather, in commingling cases, the Commingler must show, through expert testimony, the amount of oil and gas attributable it’s interest as well as that attributable to the Aggrieved Party’s interest. Once qualified as an expert on geological/engineering matters, it is thereafter up to the expert to prove to the satisfaction of the trier of fact, the relevant ownership percentages of the oil and/or gas alleged to have been commingled. Reeder v. Wood County Energy L.L.C , 320 S.W.3d 433, (Tex.App. - 2010) A post- West case (but prior to the Reeder case) perhaps sets forth the rule most clearly in commingling cases:
liability merely because it is impossible to state or prove a perfect measure of damages.” Southwest Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097, 1099 (1938). Rather, courts distinguish between uncertainty as to the fact of damages, which may preclude recovery, and uncertainty as to the amount of damages, which “will not defeat recovery.” Id. When the fact of damages is clear, the plaintiff is required to prove his damages with only “ reasonable certainty .” E.g., Bildon Farms, Inc. v. Ward County Water Improvement Dist., 415 S.W.2d 890, 897 (Tex.1967). This rule of “ reasonable certainty ” is particularly applicable when it is the wrongdoer’s conduct that precludes “precise computation of the extent of the injury.” Kestenbaum v. Falstaff Brewing Corp., 514 F.2d 690, 698 (5th Cir.1975), cert. denied, 424 U.S. 943, 96 S.Ct. 1412, 47 L.Ed.2d 349 (1976); cf. Humble Oil & Ref. Co. v. West, 508 S.W.2d 812, 818 (Tex.1974) (under confusion of goods theory, party responsible for commingling goods bears burden of establishing aliquot shares with reasonable certainty). TransAmerican Natural Gas Corp. v. Finkelstein , 933 S.W.2d 591, 610 (Tex.App. — 1996) emphasis added Thus, an Aggrieved Party alleging that commingling of its oil and/or gas has taken place, and that damages cannot be determined with reasonable certainty due to the commingling of the oil and gas, has to show, under one of the above enumerated causes of action, that: 1. The Aggrieved Party owns an undivided interest in the commingled mass of oil and gas and that the specific quantity, which it owns, cannot be determined from conventional oil and gas measurement techniques utilized by the Commingler due to commingling; and The Commingler has exercised dominion and control over a quantum of oil and gas that is owned by the Aggrieved Party by producing and selling same and has refused to properly account to the Aggrieved Party for its aliquot share of the proceeds from such sales. 2. 3. The Aggrieved Party has demanded an accounting for its share of oil and gas sales and the Commingler has refused same
“A party who breaks his contract cannot escape
4.
The Aggrieved Party’s aliquot share of such
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G r o w t h T h r o u g h E d u c a t i o n - J u l y / A u g u s t / S e p t e m b e r 2 0 2 0
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