Full opinion text
OPINION Opinion by: PHYLIS J. SPEEDLIN, Justice. This appeal arises out of a title dispute over oil and gas producing property in McMullen County, Texas. The trial court resolved the issues of title in a summary judgment, rejected the plaintiffs’ bad faith trespass claims against the working interest owners, and after a bench trial awarded damages for unpaid net revenues and royalties. The court declined to award attorney’s fees to any party. Five parties appeal from the judgment. FaCTUAL AND PROCEDURAL BACKGROUND The underlying lawsuit arises out of a title dispute to mineral interests in a 690.54-acre tract known as the Baker Property, which comprises Section 3, Seale & Morris Survey A-434, in McMullen County, Texas. In 2001, the period of time relevant to this appeal, there were four owners of the mineral estate in the Baker Property: • Burlington Resources, which owned a 25% mineral interest acquired from El Paso Natural Gas Company which had entered into a written lease with P.R. Rutherford in 1966 known as the “El Paso Lease,” which was still in effect in early 2001. • The Baker Trusts, represented by Bank of America (the “Bank”) as trustee, which owned a 25% mineral interest and through Earl M. Baker had entered into a written lease with P.R. Rutherford in 1965 known as the “Baker Lease,” which was still in effect in early 2001. • Michael G. Rutherford and Patrick R. Rutherford, Jr., and their children, who are the heirs of P.R. Rutherford, and Rutherford Oil Corporation (collectively, “the Rutherfords”), who owned a 25% mineral interest subject to the Baker Lease. • BP America Production Company (“BP”), successor to Atlantic Richfield Company (“ARCO”), which owned a 25% mineral interest that was not subject to a written lease. A joint operating agreement (“JOA”) covered the Baker Property (the “Unit Area”). The JOA was entered into in 1967 between ARCO, as a 25% mineral interest owner and the operator, and P.R. Rutherford, W. Earl Rowe, T.J. Goad, Patrick Rutherford, Jr., and Michael C. Rutherford (the “P.R. Rutherford Group”) as the owners of the leasehold interests. The P.R. Rutherford Group contributed the El Paso and Baker Leases (jointly, the “Leases”), covering 75% of the mineral interests in the Baker Property, to the JOA. ARCO’s 25% mineral interest was not subject to a written lease, but was contributed to the JOA so that the Baker Property could be developed as a whole. The mechanism for this was Article 3 of the JOA, which created a “deemed lease” covering any unleased mineral interest that had been contributed to the Unit Area — i.e., ARCO’s unleased 25% mineral interest. Therefore, from 1967 forward, 100% of the mineral interest in the Baker Property was subject to the JOA, with ARCO serving as the operator of all drilling operations and production in the Unit Area. As a mineral owner, ARCO was entitled to receive 25% of the 1/8 royalty under the JOA, and retained a possibility of revert-er of its mineral interest if the JOA ever terminated. After the JOA was signed, two successful wells were drilled on the Baker Property (Baker Well Nos. 4 and 6). The El Paso and Baker Leases each contained a “continuous production or operations” clause providing for continuation of the lease after the expiration of its primary term for as long as operations or production was on-going. The clauses were substantially the same, and provided that the lease would “remain in force so long as drilling, mining or reworking operations are prosecuted (whether on the same or different wells) with no cessation of more than sixty (60) consecutive days, and if they result in production, so long thereafter as oil or gas is produced from said land or land pooled therewith.” With respect to the term of the JOA, Article 10 provided that the JOA “shall remain in full force and effect for as long as any of the oil and gas leases subjected to this agreement remain or are continued in force as to any part of the Unit Area, whether by production, extension, renewal or otherwise ...” In 1986, ARCO entered into a purchase and sale agreement with Prize Energy (“Prize”), known at that time as Petrus Energy, pursuant to which it sold all its rights under the JOA. Under the terns of the agreement, ARCO retained its royalty interest and its right of reverter to its 25% mineral interest subject to the JOA’s “deemed lease,” which mineral interest would revert back to ARCO free and clear if the JOA ever terminated. After the 1986 sale, Prize and the P.R. Rutherford Group were the operators under the JOA on the Baker Property from 1986 forward. During June — August 2001, there was a 71-day period when no well on the Baker Property was operating or producing in paying quantities. None of the lessors were aware of the cessation of operations, and no one raised any concern at the time. In the following years, Prize (through Ci-marex Energy), and then Gruy Petroleum/Rutherford Oil, continued developing the Baker Property and drilled and completed seven more wells, the Baker Well Nos. 7-13; four of those wells were producing wells. In 2004, Cliff Hoskins, who had no previous connection to the Baker Property, conducted some research on leases in the area, and became aware of the possible termination of the Baker Property’s Leases and the JOA in August 2001. Hoskins, through his company Cliff Hoskins, Inc. (“Hoskins”), contacted BP (f/k/a ARCO), and offered to buy its 25% mineral interest which Hoskins asserted had reverted to BP in August 2001 — when the JOA had purportedly terminated due to the cessation of operations. On June 25, 2004, BP sent a letter to Magnum Hunter Resources, Inc. questioning whether production on the Baker Property had ceased between June 2001 and April 2002, and requesting documents to confirm production — including meter readings, allocation statements, and check details relating to payments for gas produced. Magnum Hunter responded that, “[t]here has been continuous production, under the terms of the leases and the operating agreement ...,” and provided none of the requested documents. Hoskins filed suit to quiet title on January 25, 2005. One month later, in February 2005, the Rutherfords, the Bank, and Burlington all signed ratifications of the El Paso and Baker Leases (the “Ratifications”), which purported to extend or renew the Leases that made up 75% of the interests subject to the JOA; the other 25% was made up of ARCO/BP’s unleased interest which was contributed to the JOA. BP subsequently filed its own suit against Prize and the Rutherfords in October 2005. In 2007, BP deeded its claimed (reverted) 25% mineral interest to Hoskins, making the transfer retroactive to August 16, 2004. In the sale to Hoskins, BP reserved a 6.25% nonparticipating royalty interest in the 25% mineral interest it conveyed to Hoskins. In their suits against Prize and the Rutherfords, Hoskins and BP asserted claims to quiet title to their interests and for declaratory relief, plus claims for bad faith trespass, theft/conversion, recovery of unpaid proceeds under the Texas Natural Resources Code, breach of contract, and recovery of attorney’s fees. The Bank, as trustee for the Baker Trusts, also asserted various claims against Prize and the Ruth-erfords, including claims for fraud, trespass, and theft, rescission of its Ratification, and to quiet title to the Baker Trusts’ mineral interest. Competing summary judgment motions were filed by all the parties. On February 5,2009, the trial court signed an “Interlocutory Judgment” in which it: 1. Granted the summary judgment motion by Prize and the Rutherfords on “all Plaintiffs’ claims of trespass,” and ordered that Plaintiffs “take nothing ... on any trespass claim in this cause;” 2. Granted the summary judgment motion by Prize and the Rutherfords on all claims by the Bank, “including claims of fraud and rescission of the Ratification,” and ordered that the Bank take nothing; 3. Granted the declaratory relief sought by Hoskins and BP, finding (i) the El Paso and Baker Leases and the JOA all terminated in August 2001, at which time Hoskins/BP’s mineral rights and interests reverted free and clear from the JOA, making them unleased co-tenants; (2) from August 2001 through August 15, 2004, BP had an undivided 25% mineral interest, subject only to the nonparticipating royalty interest; and (3) from August 16, 2004 forward, BP’s 25% mineral interest passed to Hoskins, subject to BP’s retained royalty interest which burdens Hoskins’ mineral interest and “does not burden any interests held by the Defendants;” 4. Made the finding that “the Defendants as mineral owners or invitees of mineral owners were not trespassers, or were alternatively ‘good faith trespassers,’ ” as to Hoskins and BP after termination of the Leases and JOA; 5. Granted summary judgment “against all remaining claims and counterclaims asserted by any party in this case;” 6. Granted summary judgment “against all remaining affirmative defenses asserted by any party to the extent those defenses would be inconsistent with the Court’s rulings;” 7. Ordered the parties to work together to stipulate to “the revenues less costs applicable to the Subject Acreage,” or a bench trial on “that remaining issue” would be conducted; and 8. Noted the parties “dispute whether the issues of attorney’s fees and interest, including such claims under the Texas Natural Resources Code, are still live issues,” and stated the Court would determine those issues by further order or in the final judgment, and that it had indicated it would “decline to award any discretionary attorneys’ fees to any party in this case.” The parties were unable to stipulate to the net revenues, so a bench trial was held on that issue. On September 11, 2009, the trial court signed its final judgment which incorporated its interlocutory judgment “addressing the liability issues in this case,” and then awarded damages for net revenues to Hoskins of $1,267,482, plus pre-judgment and post-judgment interest, and damages for net revenues and royalty revenues to BP of $3,252,827, plus prejudgment and post-judgment interest. The court found the “underlying nature of Hoskins’ and BP’s suit was to obtain a determination of title,” and declined to award attorney’s fees to any party. The court made an alternative finding, however, that each party had incurred reasonable attorney’s fees of $900,000 each. All parties appealed from the judgment. In the main appeal, appellants Prize and the Rutherfords are aligned, and ap-pellees Hoskins and BP are aligned. Each aligned party adopts the other party’s brief. In their appeal, Prize and the Ruth-erfords present the following arguments: (1) as a matter of law, the JOA did not terminate and BP’s 25% mineral interest did not revert; (2) alternatively, the net revenues damages awarded to Hoskins and BP should be reversed because there is no cause of action to support the damages award; (3) the royalties awarded to BP should be reversed because Prize’s and the Rutherfords’ interests are not burdened by BP’s royalty interest; (4) the pre-judgment and post-judgment interest awards to Hoskins and BP should be reversed; (5) the court should have awarded Prize and the Rutherfords their attorney’s fees because they prevailed on their summary judgment motions; (6) the court erred in imposing a future duty of accounting on Prize and the Rutherfords; and (7) as a conditional point in the event of a remand on BP’s contractual claim for royalties, the affirmative defenses raised by Prize and the Rutherfords are still live. The Ruth-erfords also raise two additional damages-related issues in the event this Court sustains the damages awards to Hoskins and BP: (1) the court erred in assessing damages against the “Rutherford Children” who own only leasehold interests and no mineral interests; and (2) the court erred in making the Rutherfords jointly and severally liable with Prize for the total damages awarded to Hoskins and BP. Title Question As noted, supra, the trial court granted declaratory relief to Hoskins and BP on the question of their title to the 25% un-leased mineral interest. Specifically, the court held that, in August 2001, the El Paso and Baker Leases and the JOA terminated, and BP’s 25% mineral interest reverted to it free and clear of the JOA; therefore, from August 2001 through August 15, 2004, BP had clear fee simple title to its undivided 25% mineral interest. On August 16, 2004, Hoskins acquired title to such 25% mineral interest from BP, subject only to BP’s retention of a 6.25% nonparticipating royalty interest. In then-appeal, Prize and the Rutherfords assert the judgment in favor of Hoskins and BP on their title claims should be reversed and rendered because, as a matter of law, the JOA never terminated; therefore, there was no reversion to BP of the 25% mineral interest contributed to the JOA, and BP could not sell the 25% mineral interest to Hoskins. Thus, Hoskins owns no interest in the Baker Property. Under Prize’s and the Rutherfords’ theory, BP still holds only the reversionary right to the 25% mineral interest plus the right to receive royalties. In support of their position, Prize and the Rutherfords make the following arguments: (1) as an initial matter, BP and Hoskins have no standing to assert that the JOA terminated because they are not parties to the operating agreement; (2) the JOA never terminated because it was continued or revived by the Ratifications of the El Paso and Baker Leases signed by Burlington, the Rutherfords, and the Bank; (3) the JOA never terminated because it was extended by the conduct of the parties to the agreement, i.e., Prize and the Rutherfords continued to operate under the JOA; and (4) even if the Leases and JOA terminated due to the cessation of production/operations, the “deemed lease” created by Article 3 of the JOA did not terminate because it contains no “cessation of production” clause. In response, Hoskins and BP assert that the Baker and El Paso Leases terminated upon the 71-day cessation of production in August 2001, and, according to its own terms, the JOA automatically terminated at that time as well. Upon termination of the JOA in August 2001, BP’s 25% mineral interest contributed to the JOA was released from the “deemed lease,” and immediately and automatically reverted to BP free and clear of the JOA. Thus, BP had clear title to its 25% mineral interest which it subsequently sold to Hoskins, retaining only a 6.25% nonparticipating royalty interest. In responding to the issues raised by Prize and the Rutherfords, Hos-kins and BP argue: (1) they have standing to assert the JOA terminated because its termination directly affects their ownership interests; (2) Prize and the Ruther-fords did not appeal the trial court’s finding that the Leases terminated in August 2001 due to the cessation of operations/production, and, based on that finding, the JOA automatically terminated in August 2001 according to its own terms and the reversion to BP occurred; (3) the JOA was not continued, renewed, or revived by (i) the Ratifications signed in 2005 by the three lessors on the written Leases, (ii) the conduct of the operators in continuing to drill under the JOA after August 2001, or (iii) the-“deemed lease” provision of the JOA. As these issues are intertwined, we will discuss them together. (1) Standing. The threshold issue we must resolve is whether BP and Hos-kins have standing to sue to declare the JOA terminated and to clear their title to the 25% mineral interest which BP sold to Hoskins. As Hoskins’ ownership interest flows from, and is dependent on, BP’s ownership interest, we will initially focus on BP. Resolution of the question of standing is intertwined with the title question of whether BP’s mineral interest reverted back to it in August 2001 so that it could later be sold to Hoskins. Standing is a component of subject matter jurisdiction and must be resolved first before the merits of an issue may be addressed. DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex.2008) (noting a court lacks jurisdiction over a claim made by a plaintiff without standing to assert it). To have standing, a plaintiff must be “personally aggrieved” and his injury must be “concrete and particularized, actual or imminent, not hypothetical.” Id. at 304-05. Standing cannot be waived and may be raised for the first time on appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd„ 852 S.W.2d 440, 445 (Tex.1993). A party’s standing is determined at the time suit is filed. Id. at 446 n. 9; In re Guardianship of Archer, 203 S.W.3d 16, 23 (Tex.App.-San Antonio 2006, pet. denied). In determining standing, we look to the facts alleged in the petition, but may consider other evidence in the record if necessary to resolve the question of standing. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000). Prize and the Rutherfords assert that neither BP nor Hoskins has standing to assert the JOA terminated because (i) neither is a party to the JOA, and (ii) neither is a third party beneficiary of the JOA. BP and Hoskins respond that they have standing because BP is the successor to ARCO, an original signing party to the JOA, who retained a contractual interest in the JOA after the 1986 sale because its unleased 25% mineral interest was “contractually committed” to the JOA under Article 3; therefore, the reversionary interest retained by ARCO/BP was directly tied to, and wholly dependent on, the termination of the JOA, giving BP standing to sue to declare the JOA terminated. First, it is undisputed that neither BP nor Hoskins is a signing party to the JOA. The JOA was executed in 1967 by the P.R. Rutherford Group as the operator and lessee under the Baker and El Paso Leases, and by ARCO as the operator and a mineral owner contributing its unleased 25% mineral interest to the Unit Area. ARCO retained a reversionary interest pursuant to which its 25% mineral interest would revert back to ARCO if the JOA ever terminated; in addition, it contracted for a royalty interest under the JOA, although while it was the operator ARCO never paid itself any royalties. In 1986, when ARCO sold all of its rights and obligations under the JOA to Petrus (predecessor of Prize), ARCO retained its right of reverter to its 25% mineral interest upon termination of the JOA and its royalty interest. Petrus/Prize succeeded to ARCO’s 50% working interest and became co-operator along with the P.R. Rutherford Group from 1986 forward. BP succeeded to the rights ARCO retained in the 1986 sale, i.e., the reversionary interest and the royalty interest. Prize and the Rutherfords assert that because ARCO sold all its rights under the JOA in 1986, and BP succeeded only to the royalty and reversionary interests retained by ARCO, BP has no standing to challenge the JOA because it is not a party to the JOA, and is not a third party beneficiary of the JOA; alternatively, at most, BP is only an incidental beneficiary who may not bring an action on the JOA. We agree that, under well-settled contract principles, only the parties to a contract have the right to complain of a breach of the contract, with the exception that a nonparty who proves the contract was made for his benefit, and that the contracting parties intended he benefit from the contract, may bring an action on the contract as a third party beneficiary. See Grinnell v. Munson, 137 S.W.3d 706, 712 (Tex.App.-San Antonio 2004, no pet.); Tennessee Gas Pipeline Co. v. Lenape Resources Corp., 870 S.W.2d 286, 295 (Tex.App.-San Antonio 1993), aff'd in part and rev’d in part on other grounds, 925 S.W.2d 565 (Tex.1996); Bruner v. Exxon Co., 752 S.W.2d 679, 682-83 (Tex.App.-Dallas 1988, writ denied). In contrast to a donee or creditor beneficiary, an “incidental beneficiary” who may receive only an incidental benefit from the performance of the contract, does not have a right of action on the contract. MCI Telecomm. Corp. v. Tex. Utilities Elec. Co., 995 S.W.2d 647, 651 (Tex.1999); see Grinnell, 137 S.W.3d at 712-14 (surface estate owner, who as shareholder of corporate mineral owner had indirect right to receive share of royalties when paid under oil and gas leases, was merely an incidental beneficiary who did not have standing to sue to declare leases terminated; he was not a party to leases and leases were not intended to benefit surface owner); see also Bruner, 752 S.W.2d at 682-83 (party with assignment of rentals was merely incidental beneficiary of lease, and had no standing to sue for wrongful termination of oil and gas lease). Here, however, the critical factor is that BP is claiming an ownership interest by virtue of the reversion of its mineral interest. An oil and gas lease generally conveys a fee simple determinable in the mineral estate with the possibility of re-verter. Natural Gas Pipeline Co. v. Pool, 124 S.W.3d 188, 192 (Tex.2003) (lessee acquires ownership of all the minerals in place that lessor owned and leased, subject to possibility of reverter in the lessor); Concord Oil Co. v. Pennzoil Exploration and, Prod. Co., 966 S.W.2d 451, 460 (Tex.1998) (lessor also receives the rights bargained for under the lease, typically the payment of royalties, delay rentals and bonuses). A “ ‘possibility of reverter’ is the real property term of art for what the grantor owns as a future interest in a determinable fee grant; it is the grantor’s right to fee ownership in the real property-reverting to him if the condition terminating the determinable fee occurs.” Luckel v. White, 819 S.W.2d 459, 464 (Tex.1991); Stephens County v. Mid-Kansas Oil & Gas Co., 113 Tex. 160, 254 S.W. 290, 295 (1923) (typical oil and gas lease actually conveys the mineral estate as a determinable fee, less those parts reserved). Here, as successor to ARCO and the rights it reserved in the 1986 sale, BP held a right of reversion to a 25% interest in the mineral estate; in other words, BP held a right to fee simple ownership in the minerals which would revert to it upon occurrence of a specific condition — the termination of the JOA. As the holder of a reversionary interest, BP had standing to bring a title claim to assert its ownership rights in the mineral estate. Cf. Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 10-11 (Tex.2008) (holding lessor’s non-possessory reversion interest in the leased minerals gave him standing to sue for trespass based on wrongful drainage, although he was required to prove actual injury to recover damages for trespass against a non-possessory interest). Once the reversion was triggered by termination of the JOA in August 2001, as discussed in detail below, BP held a fee simple 25% interest in the mineral estate and had standing to sue to declare the JOA terminated, and to clear its title. Hoskins, in turn, has standing because it acquired BP’s mineral interest after the reversion. Accordingly, we reject Prize’s and the Rutherfords’ contention that BP and Hoskins lack standing to bring this lawsuit. (2) Title Determination. Having determined that BP and Hoskins have standing to bring the underlying lawsuit, we turn to the trial court’s determination of the title question. The trial court made a finding that operations on the Baker Property ceased for more than sixty consecutive days in June-August 2001, and that finding is not challenged on appeal; therefore, we must accept that fact as the starting point for our analysis. Termination of an oil and gas lease is a contractual matter. Wagner & Brown, Ltd. v. Sheppard, 282 S.W.3d 419, 424 (Tex.2008); Tittizer v. Union Gas Corp., 171 S.W.3d 857, 860 (Tex.2005) (oil and gas lease is a contract and its terms are interpreted as such). In construing an unambiguous oil and gas lease, we seek to enforce the parties’ intent as expressed -within the four corners of the lease document. Tittizer, 171 S.W.3d at 860; Anadarko Petroleum Corp. v. Thompson, 94 S.W.3d 550, 554 (Tex.2002). We construe the lease as a whole, attempting to harmonize all its parts, and attribute to the lease’s language its plain, grammatical meaning unless it would undermine the parties’ intent. Anadarko, 94 S.W.3d at 554. A typical Texas mineral lease contains an habendum clause that defines the duration of the lease, typically providing a relatively short fixed term of years as the primary term and then a secondary term for “as long thereafter as oil, gas or other mineral is produced.” Id.; Grinnell, 137 S.W.3d at 714. A lease that states its secondary term lasts for “as long as oil or gas is produced” automatically terminates if actual production ceases other than temporarily. Anadarko, 94 S.W.3d at 554; Amoco Prod. Co. v. Braslau, 561 S.W.2d 805, 808 (Tex.1978). Here, the Baker and El Paso Leases expressly provided for a fixed primary term, and upon its expiration for a secondary term during which the lease shall remain in force so long as operations on said well or for drilling or reworking of any additional well are prosecuted with no cessation of more than sixty (60) consecutive days, and if they result in the production of oil, gas or other mineral, so long thereafter as oil, gas or other mineral is produced from said land or acreage pooled therewith. Therefore, the life of the secondary term of the Leases was dependent on the continuation of operations with no interruption of more than sixty consecutive days. Upon the undisputed cessation of operations for more than sixty consecutive days in June-August 2001, both the Baker and El Paso Leases automatically terminated according to their express language, without the need for any legal action by the lessors. See Anadarko, 94 S.W.3d at 554; Braslau, 561 S.W.2d at 808; W.T. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27, 30 (1929); see also BP Am. Prod. Co. v. Marshall, 288 S.W.3d 430, 451 (Tex.App.-San Antonio 2008, pet. granted); Woodson Oil Co. v. Pruett, 281 S.W.2d 159, 164-65 (Tex.Civ.App.-San Antonio 1955, writ refd n.r.e.) (under terms of particular lease, parties stipulated that a cessation of production for more than sixty consecutive days was not “temporary,” and if re-working or additional operations did not begin during the 60-day period the lease would terminate by its own terms; therefore, lessees were not entitled to reasonable time to remedy problem and resume production). Termination of the Leases in August 2001 in turn triggered the automatic termination of the JOA according to its own contractual language. Article 10 of the JOA expressly provided that the agreement “shall remain in full force and effect for as long as any of the oil and gas leases subjected to this agreement remain or are continued in force as to any part of the Unit Area, whether by production, extension, renewal or otherwise.” The language of Article 10 clearly makes the term of the JOA dependent on the continuation of the “leases subjected to this agreement;” it is undisputed that the Baker and El Paso Leases were the only leases that were contributed to the JOA. When the Baker and El Paso Leases terminated due to the more than sixty-day cessation of operations, the JOA automatically terminated according to the express language of Article 10. Wagner & Brown, 282 S.W.3d at 424; Anadarko, 94 S.W.3d at 554. Upon termination of the Leases and JOA, the mineral interests immediately and automatically reverted back to the mineral owners, without the need for any action; the unleased 25% mineral interest contributed by BP’s predecessor ARCO immediately reverted to BP, free and clear of the JOA. See Sigler Oil, 19 S.W.2d at 30 (if a lease terminates, the fee interest reverts to the lessor without the lessor taking any legal action); see also Marshall, 288 S.W.3d at 451 (“If the lease’s primary term expires when there is non-production and the lessee fails to comply with any savings clause in the lease, the lease and the lessee’s determinable fee interest ‘automatically terminates’ ... and the fee interest reverts to the lessor without the lessor taking any legal action.”). At that point, in August 2001, upon the termination of the JOA and the concurrent reversion to BP, BP became an unleased co-tenant in the Baker Property. Marshall, 288 S.W.3d at 460; Ladd Petroleum Corp. v. Eagle Oil and Gas Co., 695 S.W.2d 99, 110-11 (Tex.App.-Fort Worth 1985, writ refd n.r.e.) (if leases terminated, lessee would be considered a co-tenant of the leasehold estate with right to enter tract and take into account its costs in calculating damages owed to lessors) (citing Cox v. Davison, 397 S.W.2d 200, 203 (Tex.1965)). Hoskins’ co-tenant rights in the Baker Property likewise hinge on the termination of the JOA, and the ensuing reversion to BP of its 25% mineral interest contributed to the JOA — which mineral interest BP then sold to Hoskins. Prize and the Rutherfords argue that the JOA never terminated because the Ratifications of the Baker and El Paso Leases signed by the Rutherfords, Burlington, and the Bank in February 2005 either continued or renewed the JOA under Article 10. We disagree. While the Rutherfords, Burlington, and the Bank may be able to effectively “extend” or “renew” the written Leases to which they are parties by executing a new lease through a “ratification” document signed after termination of the Leases, they may not bind a non-party’s interest such as BP’s interest, or strip away the mineral interest that automatically reverted to BP years before the Ratifications. See Gasperson v. Christie, Mitchell & Mitchell Co., 418 S.W.2d 345, 350 (Tex.Civ.App.-Fort Worth 1967, writ ref d n.r.e.) (“If the former lease had actually expired according to its terms, any new lease(s) taken would not be ‘in renewal and/or extension’ except by contract of the parties to the new lease(s) ... even if the contract so provided it would only be binding upon parties in privity to the new contract.”); see also Willson v. Superior Oil Co., 274 S.W.2d 947, 950 (Tex.Civ.App.-Texarkana 1954, writ refd n.r.e.) (“An oil and gas lease executed by one co-tenant is valid as between the parties, but ineffectual as to the co-tenant of the grantor.”). Each owner in a co-tenancy acts for himself, and has no authority to bind others merely because of the co-tenancy relationship. Willson, 274 S.W.2d at 950. Even the JOA recognizes that any un-leased mineral interest must be affirmatively “contributed” to the Unit Area in order for the “deemed lease” provision of Article 3 to apply. There is no evidence that, at any time after August 2001, BP or Hoskins ever contributed the reverted 25% mineral interest to the Unit; indeed, both have strongly argued the opposite. Furthermore, we reject Prize’s and the Ruth-erfords’ argument that the “deemed lease” provision in Article 3 of the JOA, by itself, was enough to prevent the JOA from terminating when the JOA’s duration was expressly made dependent on the continuation and existence of the underlying written Leases. We similarly reject the argument made by Prize and the Rutherfords that the JOA was extended by their conduct in treating the JOA as on-going, or, alternatively, that their conduct in continuing to develop the Baker Property created an implied joint operating agreement. This is a species of the same argument we rejected above. The argument ignores the fact that the mineral interests immediately reverted to the lessors/owners upon the cessation of production, and termination of the Leases and JOA, in August 2001. Even if Prize and the Rutherfords created an implied contract between themselves through their actions subsequent to August 2001, their actions could not recapture the mineral interests that immediately reverted upon termination of the Leases and JOA. See Sigler Oil, 19 S.W.2d at 30; see also Marshall, 288 S.W.3d at 451. In conclusion, according to the written documents’ unambiguous terms, the Leases automatically terminated upon the more than sixty-day cessation of operations in August 2001, causing the JOA to simultaneously terminate and BP’s 25% mineral interest contributed to the JOA to revert back to BP free and clear. Accordingly, we hold the trial court correctly resolved the question of title, holding in relevant part that, “from August 2001 forward, the interests owned by Hoskins and BP in and to the Baker Ranch property ... are as follows: (1) from August 2001 through August 15, 2004, BP had an undivided 25% mineral interest, subject only to a l/64th non-participating royalty interest burden (herein the ‘BP 25% mineral interest’); and (2) from August 16, 2004 forward, the ‘BP 25% mineral interest’ passed to Hos-kins, subject to BP retaining an undivided .06250 of 8/8ths royalty interest, which burdens the ‘BP 25% mineral interest’ now owned by Hoskins.” Therefore, we overrule Prize’s and the Rutherfords’ Issue No. 3 concerning title. Having resolved the issues of standing and title, we next address Hoskins’ allegation of bad faith trespass against Prize and the Rutherfords. Trespass The parties contested whether Prize and the Rutherfords were bad faith trespassers because they continued to operate on the Baker Property after the cessation of operations in August 2001, and, in fact, drilled and completed Baker Well Nos. 7 through 13 after termination of the Leases and the JOA, and over BP’s protest. Hoskins, BP, and the Bank moved for summary judgment declaring that the Leases and JOA terminated in August 2001 and to clear title to their respective interests. Prize moved for summary judgment, arguing: (1) that the JOA had never terminated because of “production, extension, renewal, or otherwise;” (2) that Prize and the Rutherfords had the right to drill and operate on the Baker Property because they were co-tenants, or had the consent of a co-tenant; and (3) that Prize and the Rutherfords had adversely possessed any interest allegedly reserved by BP or its predecessor. As we have previously discussed, the trial court granted Hoskins’ and BP’s request for declaratory relief on the title issues. As part of the declaratory relief granted on summary judgment, and re-stated in the final judgment, the court made a finding that Prize and the Rutherfords “as mineral owners or invitees of mineral owners were not trespassers, or alternatively, were ‘good faith trespassers,’ immediately after termination of the Leases and the 1967 JOA in August 2001 and at all times thereafter.” Furthermore, the court ordered that the plaintiffs “take nothing ... on any trespass claim in this cause.” On cross-appeal, Hoskins and the Bank assert the trial court erred in granting summary judgment against them on their trespass claims because the record shows that Prize and the Rutherfords committed bad faith trespass as a matter of law, and that all their affirmative defenses fail. (1) Standard of Review. We review both a no-evidenee and a traditional motion for summary judgment de novo. Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 258 S.W.3d 184, 192 (Tex.2007); Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex.2004). We will uphold a traditional summary judgment only if the movant has established that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law on a ground expressly set forth in the motion. Tex.R. Civ. P. 166a(c); Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). A traditional motion for summary judgment is properly granted if the defendant disproves at least one essential element of the plaintiffs cause of action, or establishes all essential elements of an affirmative defense. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002); Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). If the movant is successful in establishing its right to judgment as a matter of law, the burden then shifts to the non-movant to produce evidence raising a genuine issue of material fact. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979). In deciding whether the summary judgment record establishes the absence of a disputed material fact, we view as true all evidence favorable to the non-movant and indulge every reasonable inference in favor of the non-movant. Nixon, 690 S.W.2d at 548-49. When reviewing a no-evidence motion for summary judgment, we review the evidence in the light most favorable to the respondent against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.2005); Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex.App.-San Antonio 2000, no pet.). If the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact, a no-evidence summary judgment cannot properly be granted. Tex.R. Civ. P. 166a(i); Reynosa, 21 S.W.3d at 512. More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions,” while less than a scintilla exists when the evidence is “so weak as to do no more than create mere surmise or suspicion.” Reynosa, 21 S.W.3d at 512 (internal citations omitted). Where both parties file competing motions for summary judgment, and one is granted and one is denied, we review the record and consider all questions presented and render the decision the trial court should have rendered. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex.2001). If a movant does not establish its entitlement to summary judgment as a matter of law, we must remand the case to the trial court. Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 829 (Tex.1970). When summary judgment is sought on multiple grounds and the trial court’s order does not indicate the basis for its ruling, we will affirm the summary judgment if any theory advanced by the mov-ant is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Villanueva v. Gonzalez, 123 S.W.3d 461, 464 (Tex.App.San Antonio 2003, no pet.). (2) Analysis. Hoskins argues the summary judgment record establishes bad faith trespass as a matter of law. See Mayfield v. de Benavides, 693 S.W.2d 500, 504-05 (Tex.App.-San Antonio 1985, writ ref'd n.r.e.); see also Wilen v. Falkenstein, 191 S.W.3d 791, 798 (Tex.App.-Fort Worth 2006, pet. denied) (to recover damages for trespass to real property, plaintiff must prove (1) ownership or lawful right to possess real property, (2) defendant made a physical, intentional and voluntary entry onto plaintiffs land, and (3) defendant’s trespass caused injury to plaintiff). In the circumstances presented by this appeal, a bad faith trespasser is a lessee who continues to enter under an oil and gas lease after its termination without a good faith belief in the existence of the lease. Marshall, 288 S.W.3d at 455; Mayfield, 693 S.W.2d at 504-06; see also Gulf Production Co. v. Spear, 125 Tex. 530, 84 S.W.2d 452, 457 (1935) (“to act in good faith in developing a tract of land for oil or gas, one must have both an honest and a reasonable belief in the superiority of his title”). Hoskins points to the summary judgment evidence that: (i) the Leases and the JOA terminated in August 2001, causing the lessors’ mineral interests to revert back to them; (ii) after August 2001, Prize and the Rutherfords drilled seven additional wells on the Baker Property; and (iii) failed to pay Hoskins its share of the net value of the minerals produced, thereby causing it harm. Hos-kins contends, and we agree, that because the summary judgment record establishes all the elements of trespass, the burden shifted to Prize and the Rutherfords to prove justification for their trespass, i.e., a good faith belief in their right to enter and drill, in order to avoid a finding of bad faith. See Mayfield, 693 S.W.2d at 504-05; see also Cain v. Rust Indus. Cleaning Serv., Inc., 969 S.W.2d 464, 470 (Tex.App.-Texarkana 1998, pet. denied) (once plaintiff proves right of ownership of real property and unauthorized entry by defendant, burden of proof shifts to defendant to plead and prove consent or license as justification for entry). As one of their affirmative defenses, Prize and the Rutherfords asserted their entry after August 2001 was justified under the law of co-tenancy which provides that a co-tenant has a right to explore, drill, and produce minerals from the common estate without consent from any other cotenant. Byrom v. Pendley, 717 S.W.2d 602, 605 (Tex.1986); Cox, 397 S.W.2d at 201 (each co-tenant has right to enter common estate and corollary right of possession). It is a well-established principle in Texas that a co-tenant has the right to extract minerals from common property without obtaining consent from the other co-tenants, subject only to a duty to account to them for the value of any minerals taken, less the reasonable costs of production and marketing. Wagner & Brown, 282 S.W.3d at 426. We agree with the trial court that Prize and the Rutherfords established that, as a matter of law, they were co-tenants, or invitees of co-tenants, in the Baker Property after the Leases and JOA terminated in August 2001. It is undisputed that, at all times relevant to this case, the Ruther-fords held a 25% mineral interest in the Baker Property, in addition to acting as one of the operators on the property. The Rutherfords, along with the Bank, were lessors under the Baker Lease. When that Lease terminated in August 2001 due to the lack of operations, the Rutherfords’ mineral interest subject to the Lease reverted back to them. From August 2001 forward, the Rutherfords were therefore co-tenants in the Baker Property along with the other mineral interest owners— the Bank, Burlington, and BP. See Marshall, 288 S.W.3d at 459-60. Prize operated on the Baker Property as a co-operator with the Rutherfords, who were both mineral interest owners and co-operators. We overrule this issue on cross-appeal and affirm the trial court’s summary judgment ruling that, after the JOA’s termination in August 2001, Prize and the Ruth-erfords were not trespassers because they were mineral owners or invitees of mineral owners in the Baker Property. Award of Damages Having determined that the JOA terminated in August 2001, and having affirmed the trial court’s determination of title, we next turn to the issue of damages. Prize, the Rutherfords, Hoskins, and BP all raise various challenges to the trial court’s award of damages to Hoskins and BP. We begin by addressing the arguments raised by Prize and the Rutherfords in the main appeal, then address the issues raised on cross-appeal by Hoskins and BP, and finally address the conditional issues raised separately by the Rutherfords. I. Prize’s and the Rutherfords’ Challenges to Damages Award As noted, the trial court awarded Hos-kins $1,267,482 as its share of the net revenues from August 16, 2004 to October 31, 2008, and awarded BP $3,252,827 as its share of the net revenues from August 1, 2001 to August 15, 2004 and its royalties from August 16, 2004 to October 31, 2008. The trial court defined “net revenues” as the “gross revenues less reasonable and necessary expenses beneficial to the Subject Acreage and including the Baker Well Nos. 8, 11 and 13.” In addition, the court assessed pre-judgment and post-judgment interest on both damages awards, and ordered that Prize and the Rutherfords are jointly and severally liable for both damages awards. In their appeal, Prize and the Ruther-fords argue the damages awarded to Hos-kins and BP must be reversed, and a take-nothing judgment must be rendered, because (i) Hoskins and BP did not recover under any legal theory that supports an award of damages, and (ii) all of the damages awarded to BP represent royalties, and Prize and the Rutherfords are not liable to BP for any royalties after BP sold its mineral interest to Hoskins. In addition, Prize and the Rutherfords complain the final judgment improperly awards future relief. (1) No Legal Theory to Support Damages. In their Issue No. 1, Prize and the Rutherfords assert that Hoskins and BP pled no theory of liability which supports the trial court’s award of damages consisting of net revenues and royalties. Prize and the Rutherfords argue that Hoskins and BP are not entitled to an award of damages since they prevailed only on their claims for declaratory relief. See Tex. Civ. Prac. & Rem.Code Ann. § 37.004(a) (West 2008). Prize and the Rutherfords rely on cases holding that a party cannot characterize a suit for money damages, such as a contract dispute, as a declaratory judgment action in order to circumvent sovereign immunity or other restrictions. See, e.g., Seals v. City of Dallas, 249 S.W.3d 750, 757 (Tex.App.-Dallas 2008, no pet.). They then conclude, without additional authority or argument, that because Hoskins and BP were seeking a declaration of their legal rights and status with respect to the Baker Property, they necessarily had no right to recover any monetary damages. Here, both Hoskins’ and BP’s live pleadings included, among others, a claim for declaratory relief and to quiet title to BP’s 25% mineral interest which was transferred to Hoskins, and a claim to recover their share of unpaid production proceeds, plus interest, under sections 91.402-404 of the Texas Natural Resources Code (“TNRC”). Tex. Nat. Res.Code Ann. §§ 91.402-.404 (West 2001 & Supp.2010). In its interlocutory summary judgment order, the court granted the requested declaratory relief quieting the title to the 25% mineral interest held by BP and transferred to Hoskins, and granted summary judgment against BP and Hoskins on their claims for trespass. In paragraph five, the court granted summary judgment against “all remaining claims and counterclaims asserted by any party in this case,” and against all remaining affirmative defenses asserted by any party. In paragraph seven, the court stated that counsel for Prize and the Rutherfords and counsel for Hoskins and BP were to “work together to attempt to stipulate to the revenues less costs applicable to the Subject Acreage,” and if unable to agree, a bench trial would be held “as to that remaining issue,” after which a final judgment would issue. The trial court stated its intent to “issue any damage award on a ‘net’ basis (revenues less reasonable and necessary expenses),” but requested the parties provide information as to the “gross” basis for the record. Finally, in paragraph 8, the court noted that, “[t]he parties dispute whether the issues of attorneys’ fees and interest, including such claims under the Texas Natural Resources Code, are still live issues or have been previously dealt with on summary judgment,” and stated it would determine those issues in the final judgment. The court further stated, “In the event that the Court rules that any of the subjects listed in this paragraph 8 are still live and undecided, then those undecided subjects are not covered by paragraph 5 [granting summary judgment against all remaining claims] of this order.” Reading the interlocutory judgment as a whole, the court clearly intended that the issue of damages, and the calculation of the proper amount of unpaid “revenues less costs,” was still a live issue to be determined by stipulation of the parties or at a bench trial. If, as Prize and the Rutherfords contend, all claims for monetary recovery had been denied by summary judgment, there would have been no need for the trial court to conduct a bench trial to determine the proper amount of damages to be awarded to Hoskins and BP. In its final judgment rendered after the bench trial on damages, the trial court made no express finding as to the legal theory under which it was awarding the “net revenues” damages to Hoskins and BP (plus “royalty revenues”), but did explain its method of calculating the damages. The court’s award of “net revenues” calculated as “gross revenues less reasonable and necessary expenses beneficial to the Subject Acreage” conforms to the TNRC’s requirement that a payee is entitled to receive its share of the “proceeds derived from the sale of oil or gas from an oil or gas well.” See Tex. Nat. Res.Code Ann. §§ 91.401(1), 91.402(a) (West 2001); see also Concord Oil, 966 S.W.2d at 461 (while statute was designed to protect royalty interest owners, it also encompasses working interest owners and operators); Headington Oil Co., L.P. v. White, 287 S.W.3d 204, 209-10 (Tex.App.-Houston [14th Dist.] 2009, no pet.). Moreover, the court’s assessment of pre-judgment interest on the damages awards is also consistent with recovery under the TNRC, as section 91.403(a) expressly provides for pre-judgment interest as a penalty for failure to meet the prompt payment requirements of the statute. See Tex. Nat. Res. Code Ann. § 91.403(a). In addition, the record of the bench trial clearly shows that BP’s and Hoskins’ right to recover their share of the proceeds under the TNRC was a contested issue tried before the court. Prize and the Rutherfords assert there is “no cause of action” under the TNRC, and characterize it as merely a “prompt payment statute.” To the contrary, section 91.404 clearly and expressly provides a payee with a cause of action for nonpayment of its share of mineral proceeds, and/or interest on those proceeds, under the TNRC. Id. § 91.404(c) (“A payee has a cause of action for nonpayment of oil or gas proceeds or interest on those proceeds as required in Section 91.402 or 91.403 of this code .... ”); see Bright & Co. v. Holbein Family Mineral Trust, 995 S.W.2d 742, 744 (Tex.App.-San Antonio 1999, pet. denied); see also Anadarko E &P Co., LP v. Clear Lake Pines, Inc., No. 03-04-00600-CV, 2005 WL 1583506, at *2 (Tex. App.-Austin July 7, 2005, no pet.) (mem. op.). As noted, both Hoskins and BP specifically pled for their share of unpaid production proceeds under the TNRC. In addition, Prize and the Rutherfords argue they are relieved of any liability under the TNRC based on the absence of a signed division order by BP and Hos-kins. We disagree. First, the plain language of section 91.402(c) makes the existence of a signed division order only a precondition for “payment” of a payee’s share of oil and gas proceeds, not a precondition to a payor’s liability to pay oil and gas proceeds. Section 91.402(c)(1) states, “As a condition for the payment of proceeds from the sale of oil and gas production to payee, a payor shall be entitled to receive a signed division order from payee_” Tex. Nat. Res.Code Ann. § 91.402(c)(1). The purpose of a division order is to provide the procedure for distributing the oil and gas proceeds to the payees “by authorizing and directing to whom and in what proportion to distribute the sale proceeds.” Neel v. Killam Oil Co., 88 S.W.3d 334, 341 (Tex.App.-San Antonio 2002, pet. denied), disapproved of on other grounds by Hausser v. Cuellar, 345 S.W.3d 462 (Tex.App.-San Antonio 2011, no pet. h.) (en banc); see also Gavenda v. Strata Energy, Inc., 705 S.W.2d 690, 691 (Tex.1986). In other words, the division order is merely the mechanism for payment to a payee of its share of oil and gas proceeds. Second, the statute places the burden on the payor to submit a division order to the payee for its signature; it is not the royalty owner or mineral interest owner’s burden to draft its own division order, sign it, and submit it to the payor. Tex. Nat. Res.Code Ann. § 91.402(c)(1) (“... a payor shall be entitled to receive a signed division order from payee ...”); see, e.g., Headington Oil, 287 S.W.3d at 207 (oil company that purchased leases with producing oil and gas wells submitted division orders to the known interest owners for signature). In the absence of express findings in a bench trial, we presume the trial court impliedly made all findings necessary to support its judgment, and affirm the judgment if it can be upheld on any basis. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83-84 (Tex.1992); Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex.1987) (per curiam). Here, construing the entire texts of the final judgment and summary judgment order (incorporated by reference in the final judgment) as a whole, it is clear the trial court (i) reserved from the summary judgment the recovery by Hoskins and BP of their share of net revenues and royalties attributable to their respective interests as declared by the court, and (ii) in the final judgment awarded damages to Hoskins and BP consisting of “net revenues” and “royalty revenues” under section 91.402(a) of the TNRC after conducting a bench trial to determine the specific amounts. See Whorton, 742 S.W.2d at 278 (when a judgment is vague or contradictory, we resolve the conflict or ambiguity, if possible, by construing it as a whole with the goal of harmonizing and giving effect to everything the court has written); Constance v. Constance, 544 S.W.2d 659, 660 (Tex.1976). Accordingly, we overrule Prize’s and the Rutherfords’ complaint that no legal theory supports the award of damages. (2) No Duty to Pay Royalties to BP. In Issue No. 2, Prize and the Ruther-fords argue they have no duty to pay the royalties awarded to BP; they contend it is Hoskins’ sole obligation to pay BP its royalties as part of the consideration for Hoskins’ purchase of BP’s 25% mineral interest. As an initial matter, we note that Prize and the Rutherfords assert that the record contains no evidence of any revenues from production from August 1, 2001 to August 15, 2004; therefore, the full $3.2 million awarded to BP represents royalties due on production from August 16, 2004 to October 31, 2008 which should be paid by Hoskins. In support of their contention that they are not responsible for paying BP its post-sale royalties, Prize and the Rutherfords point to the trial court’s statement in the final judgment that “BP’s royalty does not burden any interests held by the Defendants [Prize and the Ruther-fords].” (emphasis added). Prize and the Rutherfords interpret that statement to mean they have no obligation as the operators to pay BP its royalties on production. We find their argument to be somewhat disingenuous. First, the court’s statement that BP’s royalty does not “burden any interests” held by Prize and the Ruther-fords is part of the declaratory relief section of the judgment resolving the issues of title among the parties. In the previous sentence describing the interests held by BP, the court explains, “from August 16, 2004 forward, the ‘BP 25% mineral interest’ passed to Cliff Hoskins, Inc., subject to BP retaining an undivided .06250 of 8/8ths royalty interest, which burdens the ‘BP 25% mineral interest’ now owned by Cliff Hoskins, Inc.” The court was simply clarifying that BP’s retained .06250 of 8/8ths royalty interest is attached to, and thus “burdens,” the 25% mineral interest now owned by Hoskins. See Clear Lake Pines, 2005 WL 1583506, at *3 (an encumbrance is an interest in realty that is a burden on its transfer, and the right to future royalty payments on oil and gas production is an interest in realty) (citing City of Dayton v. Allred, 123 Tex. 60, 68 S.W.2d 172, 178 (1934), and Clyde v. Hamilton, 414 S.W.2d 434, 438 (Tex.1967)). The court was not stating that Prize and the Rutherfords have no duty to pay the royalties owed to BP. Second, as the entities operating on and producing oil and/or gas from the Baker Property, Prize and the Rutherfords, and their successor operators, constitute “pay-ors” under the TNRC, and as such are responsible for distributing the oil and gas proceeds to the “payees,” defined as “persons legally entitled to payment from the proceeds derived from the sale of oil or gas,” which includes royalty interest owners. Tex. Nat. Res.Code Ann. § 91.401(1), (2) (defining a “payor” as “the party who undertakes to distribute oil and gas proceeds to the payee, whether as the purchaser of the production of oil or gas ... or as operator of the well from which such production was obtained or as lessee under the lease on which royalty is due.”); see Concord Oil, 966 S.W.2d at 461. Thus, part of Prize’s and the Rutherfords’ obligation as operators on the Baker Property is to pay the royalty owners their royalties on production. Tex. Nat. Res.Code ANN. § 91.402(a). The fact that the trial court ordered Prize and the Rutherfords to pay the $8.2 million in royalties directly to BP as the royalty owner, rather than to Hos-kins as the mineral interest owner, does not constitute an abuse of discretion; in fact, it is consistent with the TNRC. Accordingly, we overrule this issue. (3) Future Relief. In Issue No. 7, Prize and the Rutherfords generally complain that the last substantive paragraph of the final judgment contains improper provisions addressing “future relief that is not pleaded, is advisory and is unwarranted.” Texas Rule of Appellate Procedure 38.1 requires an appellant’s brief to “contain a clear and concise argument for the contention made, with appropriate citations to authorities and to the record.” Tex.R.App. P. 38.1(i). Prize and the Rutherfords have waived their future relief argument because their briefs fail to make a clear and concise argument, and, with one exception, lack citations to supporting legal authority. The failure by Prize and the Rutherfords to provide a clear argument or supporting authority waives the claimed error. Nguyen v. Kos-noski, 93 S.W.3d 186, 188 (Tex.App.-Houston [14th Dist.] 2002, no pet.). Moreover, one of the provisions criticized by Prize and the Rutherfords as binding “people who are not parties to [the judgment], such as unnamed ‘first purchasers’ or future operators of the property,” is consistent with the TNRC definition of a “payor” under section 91.401(2). Prize’s and the Rutherfords’ seventh issue is therefore overruled. II. Hoskins’ Challenges to Damages Award In its third issue on cross-appeal, Hos-kins asserts the trial court erred in rejecting his proposed well by well method of calculating damages, and instead calculating the damages by “lumping all revenue and expenses together for the seven Baker wells drilled post-termination, rather than excluding costs for the three admittedly unprofitable wells.” Hoskins also challenges the court’s inclusion of the COPAS overhead costs. (1) Well by Well Method. Hos-kins contends the court should have calculated the “net revenues” payable to Hos-kins and BP on the “well by well” basis presented by its expert. Hoskins argues it should have been awarded $4,508,836 in net revenues (which excludes costs of the three unprofitable wells), rather than the $1,267,482 net revenues actually awarded (which includes deduction of costs of all seven wells). The trial court expressly rejected the “well by well” method in its final judgment, stating “the Court FINDS that Hos-kins’ and BP’s argument for damages based on a well-by-well basis is not meritorious, and the Court rejects that argument.” The court then proceeded to make additional findings that: (i) there is no applicable limitation to Defendants’ obligation to account to Hoskins and BP, and therefore no time bar to any of their claims; and (ii) the COPAS production overhead should be allowed as reasonable and necessary costs. In awarding Hoskins unpaid “net revenues,” the judgment states the amounts represent “net revenues (i.e., gross revenues less reasonable and necessary expenses beneficial to the Subject Acreage and including Baker Well Nos. 8,11 and 18)....” Baker Well Nos. 8, 11 and 13 are the unprofitable Baker wells. To support its well by well approach, Hoskins relies on the court of appeals opinion in Wagner & Brown, Ltd. v. Sheppard, 198 S.W.3d 869 (Tex.App.-Texarkana 2006), rev’d by 282 S.W.3d 419 (Tex.2008), as “the only case on point found by either party directly considering how damages should b