pjc-oil-and-gas-2022-lib

PJC 312.17

D EFENSES

PJC 312.17 Defenses—Statute of Frauds (Comment) Agreements that must be in writing. It is a defense to the enforcement of certain contracts that the promise or agreement was not made or reflected in a writing signed by the party against whom enforcement is sought. See Tex. Bus. & Com. Code §26.01(a)(1), (a)(2) (“A promise or agreement [described in this statute] is not enforceable unless the promise or agreement, or a memorandum of it, is in writing; and signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.”). Contracts that require a writing include but are not limited to a promise by an exec utor or administrator to answer for a debt due from the estate; a promise to answer for the debt of another; an agreement made on consideration of marriage; a contract for the sale of real estate; a lease of real estate for a term longer than one year; an agree ment that is not to be performed within one year of the date of making the agreement; a promise to pay a commission for an oil or gas lease, royalty, or mineral interest; and a promise of cure relating to medical care by a health-care provider. See, e.g. , Tex. Bus. & Com. Code § 26.01(b). In oil and gas cases this defense most often arises in connection with challenges to the sufficiency of the description of land included in a conveyance. Description of land. A contract to convey real property or a contract affecting real property, such as an area of mutual interest agreement, an oil and gas lease, an exploration agreement, a participation agreement, or a joint operating agreement, falls within the statute of frauds. See Tex. Bus. & Com. Code § 26.01; see also Westland Oil Development Corp. v. Gulf Oil Corp. , 637 S.W.2d 903, 908–09 (Tex. 1982). To satisfy the requirements of the statute of frauds, a contract “must furnish within itself, or by reference to some other existing writing, the means or data by which the [property] to be conveyed may be identified with reasonable certainty.” Long Trusts v. Griffin , 222 S.W.3d 412, 416 (Tex. 2006) (per curiam) (quoting Morrow v. Shotwell , 477 S.W.2d 538, 539 (Tex. 1972)). If there is no written description of the property covered by the agreement, a map or other pictorial representation must be capable of identifying the property with reasonable certainty. Guenther v. Amer-Tex Construction Co. , 534 S.W.2d 396, 397 (Tex. App.—Austin 1976, no writ). The issue of the sufficiency of the land description is a question of law. Haines v. McLean , 276 S.W.2d 777, 781–82 (Tex. 1955); Dixon v. Amoco Production Co. , 150 S.W.3d 191, 194 (Tex. App.—Tyler 2004, pet. denied). Legal question. Whether a contract falls within the statute of frauds is a legal question. Bratcher v. C.K. Dozier , 346 S.W.2d 795, 796 (Tex. 1961) (holding that duration of a contract is a legal question and not an issue for the jury to decide). But see Metromarketing Services, Inc. v. HTT Headwear, Ltd. , 15 S.W.3d 190, 196 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (stating that if extrinsic evidence is dis puted about whether an agreement can be completed within one year and thus does not

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