Joseph Mitchell Beard v. Endeavor Natural Gas, L.P., and Tepee Petroleum Company

Opinion Issued December 19, 2008

Opinion Issued December 19, 2008

In The

Court of Appeals

For The

First District of Texas

 

NO. 01-08-00180-CV

 

JOSEPH MITCHELL BEARD, Appellant

V.

ENDEAVOR NATURAL GAS, L.P and TEPEE PETROLEUM COMPANY, INC., Appellees

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 2007-13754

MEMORANDUM OPINION

           Joseph Beard appeals the trial court’s declaratory judgment in favor of Endeavor Natural Gas, L.P., (Endeavor) and Tepee Petroleum Company, Inc. (Tepee).  The trial court granted Endeavor and Tepee a summary judgment for declaratory relief, finding that Endeavor had paid Beard the correct amount of natural gas royalties pursuant to a division order recently executed by Beard.  Beard contends that (1) the trial court erred in denying Beard’s motion to transfer venue to Smith County; (2) Endeavor and Tepee’s declaratory judgment action was not based on a legally viable claim; (3) the declaratory judgment action was unsustainable because it was filed for an improper purpose, solely as a preemptive strike against Beard; (4) the trial court erred in granting summary judgment because Endeavor failed to present competent summary judgment; and (5) the trial court abused its discretion in denying Beard’s request for attorney’s fees related to the declaratory judgment action.  Endeavor and Tepee cross-appeal as to attorney’s fees.  They contend that the trial court abused its discretion in failing to award them attorneys fees as the prevailing parties in the declaratory judgment action.  We conclude that (1) venue was proper in Harris County; (2) the declaratory judgment was based on a legally viable claim; (3) the declaratory judgment was not filed for an improper purpose; (4) Endeavor presented competent summary judgment proof; and (5) the trial court did not abuse its discretion in not awarding any of the parties attorney’s fees.  We therefore affirm.

Background

Beard, an attorney and resident of Smith County, Texas, owns a royalty interest in a natural gas well located in Nacogdoches County.  Endeavor operates the well, and Tepee is the revenue processor for Endeavor.  Endeavor and Tepee both operate out of Harris County.  On January 18, 2007, Beard executed a division order, which certified his .0085612 royalty interest in the well, and delivered the division order to Tepee.

Within 45 days, at the beginning of March 2007, Tepee sent Beard an initial royalty check from the well in the amount of $28,378.43, which Beard endorsed and deposited in his local bank.  Endeavor and Tepee soon determined, however, that, due to a clerical error, this check was drawn in an incorrect amount, resulting in overpayment to Beard of $6,518.93.  On March 6, Tepee phoned Beard and left him a voicemail message, informing him that Tepee had stopped payment on the initial royalty check.  That day, Tepee also issued a replacement check in the correct amount, which was delivered to Beard by March 9.  Also on March 6, Beard sent a letter to Endeavor demanding that they release the stop-payment order on the initial royalty check.  Beard further stated in his letter, “You are requested to contact me upon receipt of this letter and state whether you are going to comply with the above-referenced request.  If forced to file suit for breach of contract, negligence, violation of privacy laws, and, in general, overall incompetence, I will seek the recovery of all attorney’s fees recoverable by law.”  Endeavor and Tepee did not release the check.  On March 7, Beard sent another letter to Endeavor and Tepee demanding that they issue another royalty check in the original amount of $28,378.43 to him on or before March 14.  This letter further stated, “If I am forced to file suit for an accounting and other viable legal causes of action, I will name you [employee of Endeavor] as an individual Defendant, right after naming Endeavor Natural Gas, L.P. as an entity defendant.  Additionally I will name [employee of Tepee] as an individual Defendant, right after naming Tepee Petroleum Company, Inc., as a corporate Defendant.”  Beard sent both letters by fax. 

Also on March 7, Beard received a letter from Tepee apologizing for the mistake and explaining that by a clerical error, Tepee had inadvertently computed the production payments from April to July of 2005 twice in the total and included those extra amounts in the initial royalty check, resulting in a difference of $6,518.93.  This letter further states the Beard should receive a royalty check in the correct amount by Federal Express.

Beard replied to Tepee’s March 7 letter with another letter stating that Endeavor and Tepee had until March 14 to reissue a royalty check in the amount of $28,378.43, and if Endeavor and Tepee failed to do so, then Beard would sue in Nacogdoches County “to determine what the ‘proper funds’ are in this matter.”  Beard’s letter continues, “The difference between Tepee Petroleum’s two calculated amounts is $6,518.93.  If Endeavor and Tepee Petroleum want to spend a year or two embroiled in a lawsuit over that difference, then so be it.” 

On or before March 9, Beard received the replacement check from Tepee, with “production run/distribution data” attached.  This data showed the production from the well from April 2005 to December 2006, and it included the calculation of Beard’s .0085612 interest in the well.  On March 9, Beard responded to his receipt of this check with another letter to Tepee, stating that he did not “assume or agree that the amount of the aforementioned second check is correct” and could not deposit the check because any such action on his part could be construed as a ratification of the amount or waiver of his legal claims and causes of action in the matter.  He again restated his demand for a check in the original amount to be received by March 14, although he said he regretted offering to resolve it for such an amount, as it had become apparent that it would cost him more than the $6,518.93 difference to “straighten out the mess at the bank you caused.”  On March 12, Beard returned the check to Tepee.

On March 8, 2007, during this ongoing correspondence, Endeavor and Tepee filed suit in Harris County, seeking a declaration that they paid Beard the correct royalty amount pursuant to the division order executed by Beard, and seeking attorney’s fees.  On April 17, after he had been served with process, Beard again requested that Endeavor and Tepee provide him with the specific date of first production of the well, and to specifically explain how they calculated the royalties and provide a full accounting.

Endeavor and Tepee moved for summary judgment on declaratory relief and attorney’s fees.  As summary judgment evidence, they attached the affidavit of an Endeavor employee, explaining the royalty calculations and authenticating the other documents, including a letter from Endeavor to Beard, indicating the date of first production of the well, the formula for royalty calculation, and attaching the check stubs for the sales of natural gas from the well.  Beard objected to much of Endeavor and Tepee’s summary judgment proof.  The trial court did not rule on Beard’s objections, granted Endeavor and Tepee’s motion for summary judgment for declaratory relief, and denied all parties’ requests for attorney’s fees.

Venue

          Beard contends that venue in Harris County was improper because the declaratory judgment action arose from the division order contract received, reviewed, and signed by Beard in Smith County.  Thus, Beard contends that venue could be proper only in Smith County.  We disagree.  The division order governs the obligations of the parties, but neither party disputes the validity of, or the obligations imposed in it. Instead, the parties disagree about the proper calculation of royalties.[1]

We overturn a trial court’s ruling on a motion to transfer venue only if the trial court’s decision is an abuse of discretion.  In re Cont’l Airlines, Inc., 988 S.W.2d 733, 735 (Tex. 1998).  In determining proper venue, the trial court’s discretion is limited by the parties’ pleading and proof.  In re Mo. Pac. R.R. Co., 998 S.W.2d 212, 216 (Tex. 1999).  The nature of the suit must be determined solely from the facts alleged in the plaintiff’s petition, the rights asserted, and the relief sought.  Renwar Oil Corp. v. Lancaster, 276 S.W.2d 774, 775 (Tex. 1955).  On review, though, if any evidence in the entire record supports the venue, then we must uphold the trial court’s determination.  Tex. Civ. Prac. & Rem. Code Ann. § 15.064(b) (Vernon 2002); Bonham State Bank v. Beadle, 907 S.W.2d 465, 471 (Tex. 1995).  Actions brought under the Declaratory Judgments Act are governed by general venue rules for civil actions.  Bonham State Bank, 907 S.W.2d at 471. Thus the general permissive venue statute applies here.  See Tex. Civ. Prac. & Rem. Code Ann. § 15.002 (Vernon 2002).  Section 15.002(a)(1) provides that venue is proper in a county where “all or a substantial part of the events or omissions giving rise to the claim occurred.”  Id. 

          Beard contends that, because he provided the trial court with a sworn affidavit stating that he received, reviewed, signed, and executed the division order in Smith County, thus “making” the contract in Smith County, that venue is proper only in Smith County.  Further, Beard contends that his receipt of royalty checks and deposit of those checks in the bank in Smith County further contributes to Smith County venue.  Beard relies on TXO Production Corporation v. Prickette for his contention.   See TXO Prod. Corp v. Prickette, 653 S.W.2d 642 (Tex. App.—Waco 1983, no pet.).  In TXO, the court held that a suit against a corporation could be maintained in the county where the contract was “made,” that the contract in TXO was “made” in the county where the appellees executed a division order, and thus venue was proper in that county.  Id. at 645–46.  The execution of such a division order, under which the controversy in TXO arose, might constitute a substantial part of the events giving rise to the controversy and allow for venue where the division order was executed.  But Section 15.002(a), enacted since TXO, allows for potentially more than one county of proper venue.  Here, the heart of the dispute is over the calculations of royalty payments under the division order rather than the construction or validity of the division order itself.  These calculations were undertaken by Tepee, as the revenue processors for Endeavor, in Harris County.  Attached to their response to Beard’s motion to transfer venue, Endeavor and Tepee filed the affidavit of William Russ, an employee of Endeavor.  [1st Supp. CR 6–7]  Russ avers that all revenue processing undertaken by Tepee occurred in Harris County.  The revenue processing constitutes a substantial part of the events or omissions giving rise to the claim.  See Highland Capital Mgmt. v. Ryder Scott, 212 S.W.3d 522, 535–36 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (holding that reviewing and analyzing of production data and preparing of reports in a dispute based on failure to follow SEC parameters in calculations were sufficient to sustain venue in Harris County).  We hold that the record reflects sufficient facts to sustain venue in Harris County, and thus the trial court did not err in refusing to transfer venue to Smith County.

Declaratory Judgment

          Beard next contends that the trial court erred in granting Endeavor and Tepee’s declaratory judgment because the declaratory judgment was not based on a legally viable claim and was filed for an improper purpose, as a “preemptive strike” against Beard. 

We review declaratory judgments under the same standards as other judgments and decrees.  Tex. Civ. Prac. & Rem. Code Ann. § 37.010 (Vernon 2008); City of Galveston v. Giles, 902 S.W.2d 167, 170 (Tex. App.—Houston [1st Dist.] 1995, no writ).  We look to the procedure used to resolve the issue at trial to determine the standard of review on appeal.  Giles, 902 S.W.2d at 170.   Here, because the trial court resolved the case on competing motions for summary judgment, we review the propriety of the declaratory judgment under summary judgment standards.  Lidawi v. Progressive County Mut. Ins. Co., 112 S.W.3d 725, 730 (Tex. App.—Houston [14th Dist.] 2003, no pet.).

          Our review of a summary judgment is de novo.  Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).  Under the traditional standard for summary judgment, the movant has the burden to show that no genuine issue of material fact exists and that judgment should be granted as a matter of law.  Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).  We view all evidence in a light favorable to the nonmovant and indulge every reasonable inference in the nonmovant’s favor.  Provident Life, 128 S.W.3d at 215.   When both sides move for summary judgment and the trial court grants one motion and denies the other, we consider both motions, their evidence, and their issues, and we may render the judgment that the trial court should have rendered.  See CU Lloyd’s of Tex. v. Feldman, 977 S.W.2d 568, 569 (Tex. 1998).

          The purpose of the Declaratory Judgments Act is “to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.”  Tex. Civ. Prac. & Rem. Code Ann. § 37.002(b) (Vernon 2008); see Bonham State Bank, 907 S.W.2d at 467; Indian Beach Property Owners’ Ass’n v. Linden, 222 S.W.3d 682, 699 (Tex. App.—Houston [1st Dist] 2007, no pet.).  The statute is “remedial” and “to be liberally construed.”  Id.  A declaratory judgment is appropriate only if a justiciable controversy exists as to the rights and status of the parties, and a declaration will resolve the controversy.  Bonham State Bank, 907 S.W.3d at 467; Fort Bend County v. Martin-Simon, 177 S.W.3d 479, 482–83 (Tex. App.—Houston [1st Dist.] 2005, no pet.).  A trial court has discretion to enter a declaratory judgment so long as it will serve a useful purpose or will terminate the controversy between the parties.  Bonham State Bank, 907 S.W.3d at 467 (citing James v. Hitchcock Independent School Dist., 742 S.W.2d 701, 704 (Tex. App.—Houston [1st Dist.] 1987, writ denied).

          Beard contends that Endeavor and Tepee’s declaratory judgment action is improper because it goes beyond a question of construction or validity of a contract and asks the court to determine performance under the contract.  But the statute itself states that the subjects enumerated in the Declaratory Judgments Act are not exclusive, and the Texas Supreme Court has agreed.  See Tex. Civ. Prac. & Rem. Code Ann. § 37.002 (Vernon 2008); Bonham State Bank, 907 S.W.2d at 468.

In this case, a real and justiciable controversy existed as to the parties’ rights and liabilities under the division order.  See Martin-Simon, 177 S.W.3d at 483–84 (holding that a justiciable controversy existed with regard to plaintiff’s liability for taxes previously assessed because she had already paid those taxes).  Beard’s numerous threats of suit in his “demand letters” indicated that there was ample reason for Endeavor and Tepee to believe that a real controversy existed over the proper amount of the royalty checks (though Beard never pursued those demands once Endeavor filed suit).  See Ainsworth v. Oil City Brass Works, 271 S.W.2d 754, 760–61 (Tex. App.—Beaumont 1954, no writ) (holding that an action for declaratory judgment lies when the fact situation manifests the presence of “ripening seeds of a controversy”).

Furthermore, a declaratory judgment can be a proper method to determine that a party performed under a contract.  See Martin-Simon, 177 S.W.3d at 483–84 (holding that judgment was proper to determine that plaintiff paid her taxes).  The determination that Endeavor and Tepee had paid the correct amount under the contract was not simply an issue of fact, as it determined Endeavor and Tepee’s “status” under the division order.  See Indian Beach, 222 S.W.3d at 700 (holding that whether the plaintiffs’ construction of a fence was in compliance with deed restrictions applicable to their property was not a purely factual dispute but related to their status with regard to the fence and deed restrictions, and was a proper subject for declaratory judgment). 

          Beard also contends that the declaratory judgment action was improper because Endeavor and Tepee filed against him
“solely as a ‘preemptive strike’” to gain “favorable venue and unlawful tactical advantage” over Beard, which is an improper use of the Declaratory Judgments Act.  Beard relies on Abor v. Black for his contention that filing suit to declare non-liability is improper.  Abor v. Black, 695 S.W.3d 564 (Tex. 1985).  In Abor, the Court held that a suit to determine non-liability in a negligence claim is an improper use of the Declaratory Judgments Act.  Id. at 566.  This rule evolves from the notion that it is a plaintiff’s right to sue for a tort, in his choice of venue.  Stark v. Benckenstein, 156 S.W.3d 112, 117 (Tex. App.—Beaumont 2004, pet. denied).  Abor and its holding do not apply to a contract action.  See Trinity Universal Ins. Co. v. Sweatt, 978 S.W.2d 267, 271 (Tex. App.—Fort Worth 1998, no pet.).  In contract cases, either party may seek a judicial declaration of rights under the contract.  Stark, 156 S.W.3d at 117 (holding that where party sought a judicial determination of validity of a release contract, rights and legal relations of the parties under that instrument, and full and final disposition of all claims under the instruments, such questions were a judicial determination of rights under a contract and were proper for declaratory relief).  The dispute here is contractual, and Endeavor and Tepee were within their rights to file a declaratory judgment in a court of proper venue.  We hold that the trial court did not abuse its discretion in hearing Endeavor and Tepee’s declaratory judgment action.

Objections to Summary Judgment Evidence

          Beard contends that the trial court erred in granting Endeavor and Tepee’s motion for summary judgment because the judgment was based on incompetent summary judgment evidence. Relying on documentary evidence including Beard’s letters to Endeavor and Tepee, Endeavor’s letter forwarding revenue processing information to Beard, and the production and sale information gathered from the gas lease, Endeavor and Tepee sought summary judgment.  Beard complains that Russ’s affidavit, authenticating these documents, is not competent summary judgment evidence. Beard objected to the summary judgment proof on many grounds in the trial court, but he failed to obtain a ruling on any of his objections.

          To constitute competent summary judgment evidence, affidavits must be made on personal knowledge, set forth facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to matters stated therein.  Tex. R. Civ. P. 166a(f).  A party must object in writing and obtain an express or implied ruling from the trial court to preserve for appellate review a complaint about the form of summary judgment evidence.  Id.; Tex. R. App. P. 33.1(a)(2)(A); Grand Prairie Indep. Sch. Dist. v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990); Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 130 (Tex. App.—Houston [1st Dist] 1999, no pet.); Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no writ). An objection to a substantive defect, such as a conclusory affidavit, may be raised for the first time on appeal.  Green, 1 S.W.3d at 30; Rizkallah, 952 S.W.2d at 587.  A trial court’s ruling on a motion for summary judgment does not imply a ruling on an objection to summary judgment evidence.  Delfino v. Perry Homes, 223 S.W.3d 32, 35 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (quoting Well Solutions v. Stafford, 32 S.W.3d 313, 317 (Tex. App.—San Antonio 2000, no pet.).

          Beard complains of at least nine different defects in Russ’s affidavit.  Beard contends that Russ does not state the capacity in which he is employed by Endeavor, does not sign the affidavit in a representative capacity for Endeavor, and testifies about matters performed by Tepee but does not state how he is qualified to testify on matters involving Tepee, all of which make his testimony inadmissible hearsay. These are all defects in form that are waived for a lack of a ruling.  See Rizkallah, 952 S.W.2d at 585–86 (holding that lack of personal knowledge and lack of competence or qualifications to testify are defects in form); Wilson v. Gen. Motors Acceptance Corp., 897 S.W.2d 818, 821–22 (Tex. App.—Houston [1st Dist.] 1994, no writ).  Beard further contends that, because Russ fails to state that he is the custodian of any business records or how he is otherwise qualified to authenticate and testify about any Endeavor or Tepee documents, the documents attached to the affidavit are all hearsay and inadmissible.  This is also a defect in form, waived by Beard’s failure to obtain a ruling.  See id.

          Beard further objects to the substance of Russ’s affidavit, which may be raised for the first time on appeal.  Specifically, Beard complains that Russ makes the conclusory statements that Beard “has been paid the proper royalty amount” and that Endeavor and Tepee “had at all times complied with their obligations . . . regarding the payment of the royalties that have been made the basis of this suit.”  As Beard identifies no other specific conclusory statements, we consider only these two.  See Tex. R. App. P. 38.1(h) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and the record.”); Churchill v. Mayo, 224 S.W.3d 340, 347 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (holding that where appellant failed to identify any specific conclusory statements, there was nothing for the court to review).

          A conclusory statement is one that does not provide the underlying facts to support the conclusion and is not proper as summary judgment proof.  Rizkallah, 952 S.W.2d at 587.  First, Beard complains that Russ’s statement that Beard has been “paid” the proper royalty amount is unsubstantiated because Beard has not been “paid” anything, as he returned the second royalty check that Endeavor and Tepee sent him.  Russ explains, however, the method of royalty calculation based on the division order and the production spreadsheets attached to the affidavit, and that Beard was “paid” accordingly by a check that Beard admits that he received in one of his letters attached to the affidavit.  Beard also complains of Russ’s statement that Endeavor and Tepee had “at all times complied with their obligations regarding the payment or royalties that have been made the basis of this suit.”  Russ states that this conclusion is based on the documents attached to his affidavit.  The underlying facts in the documents attached to the affidavit showing the amount of production, the amount of Beard’s royalty interest, and the amount that Endeavor and Tepee tendered to Beard support this conclusion.  The statements in Russ’s affidavit that Beard’s claims are conclusory are properly based on factual evidence provided in the summary judgment record, and we hold that Beard’s objections do not provide a basis for reversal of the summary judgment.  See id.; Green, 1 S.W.3d at 130.

          Finally, Beard objects to the letter from Endeavor to Beard dated April 19, attached to Russ’s affidavit, which provided Beard production data and the formula for the calculation of his royalty interest.  Beard contends that he never received the April 19 letter.  However, the April 19 letter is not necessary to uphold the trial court’s summary judgment in favor of Endeavor and Tepee.  Even without the April 19 letter, we hold that sufficient evidence exists to sustain summary judgment that Endeavor and Tepee paid Beard the proper royalty amount under the division order.  See Rizkallah, 952 S.W.2d at 588 (holding that an affidavit that contains statements that are incompetent as summary judgment proof may support a motion for summary judgment if the remaining statements contain sufficient factual information to sustain the movant’s burden of proof).

Attorney’s Fees

          Beard, Endeavor, and Tepee all claim entitlement to attorney’s fees under the Declaratory Judgments Act. Beard alleges that Endeavor and Tepee improperly held Beard’s initial royalty payment in suspense, engaged in a number of admitted mistakes and miscalculations, unilaterally stopped payment on his initial royalty check, and engaged him in improper and unnecessary litigation, which entitles him to be awarded his attorney’s fees.  In their counterclaim, Endeavor and Tepee contend that the trial court erred in failing to award them attorney’s fees because Beard engaged them in unnecessary litigation, forced after Beard threatened suit, despite Endeavor’s quick correction of its error in calculating the royalty payment.

The Declaratory Judgments Act allows a trial court to award reasonable and necessary attorney’s fees that are equitable and just.  Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 1997).  The Act “entrusts attorney fee awards to the trial court’s sound discretion, subject to the requirements that any fees awarded be reasonable and necessary, which are matters of fact, and to the additional requirements that fees be equitable and just, which are matters of law.”  Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).  That award of attorney’s fees is not limited to a prevailing party, but may be given to the non-prevailing party.  Indian Beach, 222 S.W.2d at 706. 

We review an award of attorney’s fees for an abuse of discretion.  Id.  We presume that the trial court acted within the bounds of discretion unless the record shows the contrary.  Hardy v. Mann Frankfort Stein & Lipp Advisors, Inc., 263 S.W.3d 232, 254 (Tex. App.—Houston [1st Dist.] 2007, pet. granted).  Here, the trial court did not reveal the basis for the denial of attorney’s fees, and thus we may uphold its ruling on any basis supported by the evidence.  Id.  Neither Beard nor Endeavor nor Tepee points to any evidence in the record that shows that the trial court abused its discretion in denying their requests for attorney’s fees.  Endeavor relies on Knighton v. International Business Machines Corp., 856 S.W.2d 206, 210 (Tex. App.—Houston [1^st Dist.] 1993, writ denied), to contend that the trial court’s refusal to award fees to it is an abuse of discretion.  But in that case, our court affirmed the trial court’s decision as to competing fee requests— including the denial of fees to both parties who sought interplead funds.  Id.  Our court observed, “It is clear from the record that the trial court recognized that [the parties] had legitimate rights to pursue and, therefore, each should bear its own attorney's fees.”  Id. at 410–11.  Similarly, here, neither party points to record evidence that shows the trial court decision is an abuse of discretion.  Rather, Beard did not prevail, and Endeavor instituted this suit presumably because it intended to pursue a legitimate declaration of its rights, but a trial court in its discretion may deny fees to the prevailing party.  Bocquet, 972 S.W.2d at 21.  We therefore affirm the trial court’s denial of attorney’s fees.  See ANR Prod. Co. v. Am. Guar. & Liab. Ins. Co., 981 S.W.2d 889, 892 (Tex. App.—Houston [1st Dist.] 1998, no pet.); Robinson v. Budget Rent-A-Car Sys., Inc., 51 S.W.3d 425, 433 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (“The fact that both parties had legitimate positions, arguments and rights to pursue, amongst other things, contributed to the determination that the court declined to award attorney’s fees.”).

Conclusion

We hold that this case was a proper subject for a declaratory judgment action, that venue was proper in Harris County, that Endeavor and Tepee submitted competent evidence to support summary judgment, and that the trial court did not abuse its discretion in denying attorney’s fees to all of the parties to the litigation.  We therefore affirm the judgment of the trial court.

                                                          Jane Bland

                                                          Justice

 Panel consists of Judges Jennings, Hanks, and Bland.

---

[1] Neither party argues that venue is proper in Nacogdoches County, where the mineral interest itself lies.  Under § 15.011 of the Texas Civil Practice and Remedies Code, actions for recovery of real property or an estate or interest in real property shall be brought in the county where the real property is located.  Tex. Civ. Prac. & Rem. Code Ann. § 15.011 (Vernon 2002).  An oil and gas lease is an interest in real property, but this provision applies only when ownership of the property is in dispute.  Yzaguirre v. KCS Resources, 53 S.W.3d 368, 371 (Tex. 2001).  As in Yzaguirre, the dispute here is not one over the boundaries of the lease or the percentage of the royalty owners’ interest, thus the mandatory venue provision does not apply.  See id.