commingled oil and gas cannot be determined with reasonable certainty.
supported in any of the cases reviewed. It is unclear if this is a new tort action or some other form of recovery newly created by this case. It is not even clear what the new ‘cause of action’ elements are such that they can be correctly pleaded. “In its first issue, appellant contends that the evidence is legally and factually insufficient to support the jury’s finding that it willfully commingled oil that was produced from the D.D. Strange with oil from the Powell and Hoff. As part of this issue, appellant contends that Texas Railroad Commission reports purportedly relied on by appellee are not evidence of commingling, that there is insufficient evidence of any commingling between the D.D. Strange and the Powell, that there is insufficient evidence that if any commingling occurred, it happened while appellant operated the D.D. Strange, that there is insufficient evidence to identify oil that appeared in the Hoff saltwater disposal tank after Willowbend took over operation of the D.D. Strange as actually coming from the D.D. Strange, that there is insufficient evidence of willfulness, and that the evidence shows, at most, only an accidental malfunction of the separator float, the means by which appellee claims the oil from the D.D. Strange was commingled with oil from the Powell and Hoff.” W.L. Lindemann Operating Co., Inc. v. Strange , 256 S.W.3d 766, 781 (Tex.App. – 2008) emphasis added It is important to note that, based on the evidence, the court concluded that “… that the evidence is legally insufficient to sustain the jury’s finding of wrongful commingling …” W.L. Lindemann Operating Co., Inc. v. Strange , 256 S.W.3d 766, 787 (Tex.App. – 2008) emphasis added. Commingling is an act conducted or caused to be conducted by the Commingler. Intent is not an element necessary to be proved when evidence is offered by the Aggrieved Party to the trier of fact in order to shift the burden of proof to the Commingler to prove each party’s aliquot share of the commingled mass. Initially, only the fact that oil and/or gas was commingled must be shown by the Aggrieved Party to shift the burden of proof to the Commingler to prove, utilizing the standard of reasonable certainty, the aliquot share of the Aggrieved Party. It is also not required that the act of commingling be shown to have been wrongful.
5. Upon such proof, the burden of proof to demonstrate, with reasonable certainty, the quantum of oil and gas which has been produced and commingled thereafter shifts to the Commingler.
Post West Case
Perhaps it is best to review at this juncture. The rules governing the commingling of oil and gas in Texas appear to be affirmed in all but one case found by the author post the West Trilogy Cases. This one case appears to completely misstate the evidentiary rule of commingling by creating or recognizing a new cause of action called “willful commingling”. In the author’s opinion, future cases dealing with the commingling of oil and gas which are brought under one or more of the above identified causes of action, will be governed by the rules of evidence set forth in the West Trilogy Cases. The act of commingling should never be an independent cause of action. Proof of commingling for damage calculation purposes is and should remain the proper rule of evidence in such cases. The case of W.L. Lindemann Operating Co., Inc. v. Strange , 256 S.W.3d 766 (Tex.App. - 2008) is the case that appears to create a new cause of action identified as “willful commingling”. The case initially identifies commingling correctly by citing the rule from The West Trilogy Cases and further correctly identifies the commingling rule as one of evidence, not recovery. The case then takes a new tack and appears to announce a rule governing ‘willful’ commingling. Up until this case, willful or intentional acts were (and are) the basis of actual or exemplary damages for the underlying cause(s) of action upon which the case is premised. Commingling of oil and gas is merely a fact issue that the trier of fact must find and then, based on the evidence, allow both the Commingler and Aggrieved Party to present evidence on whether the Aggrieved Party’s aliquot share of the commingled oil and gas can or cannot be determined with reasonable certainty. Although the plaintiff alleged conversion as one of the potential causes of action, the court also addressed another alleged cause of action, willful commingling . The author has never seen such a cause of action
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N a t i o n a l A s s o c i a t i o n o f D i v i s i o n O r d e r A n a l y s t s
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