author: KOCH, J.,

text:
    Angela P. BURRESS, et al. v. Raymond M. SANDERS, et al.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    April 4, 2000.
    Permission to Appeal Denied by Supreme Court Nov. 6, 2000.

      Alan M. Sowell, Nashville, TN, for the appellant, Dairyland Insurance Company.
    Edwin Z. Kelly, Jr., Jasper, TN, for the appellee, State Farm Mutual Automobile Insurance Company.
   OPINION

KOCH, J.,

delivered the opinion of the court, in which

TODD, P.J., M.S., and CANTRELL, J., joined.

This appeal involves a dispute between two insurance companies over the limits of the underinsured motorist coverage in a non-resident insurance company’s policy. Even though it had certified its policy to the Tennessee Department of Safety as required by Tennessee’s financial responsibility statutes, a non-resident insurance company asserted that the limits of its underinsured motorist coverage should not be increased pursuant to Tenn.Code Ann. § 55-12-121(2) (1998) because the language in its policy regarding compliance with state financial responsibility laws did not apply to the underlying automobile accident in this case. Both insurance companies sought a summary judgment from the Circuit Court for Sequatchie County, and the trial court granted a summary judgment holding that the limits of the non-resident insurance company’s underin-sured motorist coverage had, by operation of law, been increased to the limits for similar coverage required by Tennessee law. On this appeal, the non-resident insurance company asserts that the summary judgment is based on an erroneous interpretation of its insurance policy. We have determined that the trial court construed the insurance policy correctly and, therefore, affirm the summary judgment.

This case stems from a May 16, 1993 automobile collision on State Highway 28 in Sequatchie County, Tennessee involving a vehicle driven by Angelia Burress, a resident of Whitwell, Tennessee, and a vehicle driven by Raymond Sanders, a resident of Ringgold, Georgia. Ms. Bui-ress was seriously injured, and her vehicle was likewise seriously damaged.

When the collision occurred, Mr. Sanders was insured by Dairyland Insurance Company (“Dairyland”), a property and casualty insurer domiciled in Wisconsin. In compliance with Georgia law, his policy included coverage for liability up to $15,000 per person for bodily injury arising out of an automobile accident. Ms. Burress was insured by State Farm Mutual Automobile Insurance Company (“State Farm”). Her State Farm policy contained uninsured/underinsured motorist coverage limited to $50,000 per person for bodily injury arising out of an automobile accident.

After the collision with Ms. Burress, Mr. Sanders filed an owner/operator report with the Financial Responsibility Section of the Tennessee Department of Safety stating that he had been involved in a collision in Sequatchie County. The report also stated that he had liability coverage with Dairyland and identified Mr. Sanders’s policy as evidence of his financial responsibility. Later, in accordance with Tenn.Code Ann. § 55-12-121, Dairy-land certified its policy to the Department of Safety as proof of Mr. Sanders’s financial responsibility.

In May 1994 Ms. Burress filed a $125,000 negligence action against Mr. Sanders in the Circuit Court for Sequat-chie County. She formally notified State Farm of her suit because she was seeking considerably more damages than Mr. Sanders’s policy limits. State Farm entered the case as a defendant in accordance with Tenn. Code Ann. § 56-7-1206(a) (1994). After obtaining leave of court, State Farm filed a third-party complaint against Dairyland, alleging that Mr. Sanders’s policy provided that the limits of his underinsured motorist coverage should be increased from $15,000 to $25,000 (the minimum coverage required by Tennessee’s financial responsibility statutes because Mr. Sanders had used the Dairyland policy as future proof of financial responsibility). State Farm requested the trial court to declare that, insofar as the lawsuit between Ms. Burress and Mr. Sanders was concerned, the limit of Dairyland’s under-insured motorist coverage was $25,000. Dairyland disagreed with State Farm’s interpretation of Mr. Sanders’s policy.

Both insurance companies eventually moved for a summary judgment on the question of whether Dairyland was obligated to provide additional personal injury liability coverage up to $25,000 per person. On September 27, 1996, the trial court granted State Farm’s summary judgment motion after concluding that the language of Mr. Sanders’s policy and Tennessee’s financial responsibility statutes required Dairyland to increase its policy liability limits from $15,000 per person to $25,000 per person. Dairyland appealed, believing that the trial court misread its policy.

I.

The Standard of Review

Both parties agree that there are no genuine disputes of material fact and that the resolution of the case turns solely on the correct construction of Mr. Sanders’s Dairyland policy in light of Tennessee’s financial responsibility statutes. Accordingly, a summary judgment is an appropriate method for deciding this case. See generally Standard Fire Ins. Co. v. Chester-O’Donley & Assocs., Inc., 972 S.W.2d 1, 6 (Tenn.Ct.App.1998) (discussing the utility of resolving insurance coverage issues by summary judgment).

Summary judgments enjoy no presumption of correctness on appeal. See Alcazar v. Hayes, 982 S.W.2d 845, 848 (Tenn.1998); City of Tullahoma v. Bedford County, 938 S.W.2d 408, 412 (Tenn.1997). Accordingly, reviewing courts must make a fresh determination concerning whether the requirements of Tenn.R.Civ.P. 56 have been satisfied. See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.1997); Mason v. Seaton, 942 S.W.2d 470, 472 (Tenn.1997). Summary judgments are appropriate only when there are no genuine factual disputes with regard to the claim or defense embodied in the motion and when the moving party is entitled to a judgment as a matter of law. See Tenn.R.Civ.P. 56.04; Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995).

Courts reviewing summary judgments must view the evidence in the light most favorable to the nonmoving party and must also draw all reasonable inferences in the nonmoving party’s favor. See Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.1997); Mike v. Po Group, Inc., 937 S.W.2d 790, 792 (Tenn.1996). Thus, a summary judgment should be granted only when the undisputed facts reasonably support one conclusion — that the moving party is entitled to a judgment as a matter of law. See McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995); Carvell v. Bottoms, 900 S.W.2d at 26.

II.

Tennessee’s Financial Responsibility Statutes

We turn first to Tennessee’s financial responsibility statutes. Tennessee is not a “compulsory insurance” state because our General Assembly has stopped short of requiring all vehicle owners to obtain insurance. See McManus v. State Farm Mut. Auto. Ins. Co., 225 Tenn. 106, 109, 463 S.W.2d 702, 703 (1971). Like a majority of states, Tennessee has adopted financial responsibility statutes requiring motorists involved in serious accidents to prove their ability to pay up to a specified amount of damages or face the loss of their driving privileges. These statutes are intended to provide a more effective means of enforcing payment of automobile-caused damage claims, see Legislation, The Tennessee Motor Vehicle Financial Responsibility Act, 21 Tenn.L.Rev. 341, 342 (1950), and to take insolvent, financially irresponsible drivers off the roads of this state. See Erwin v. State Farm Mut. Auto. Ins. Co., 232 F.Supp. 530, 538 (E.D.Tenn.1964).

To resolve the legal issues this appeal raises, we must answer three questions regarding Tennessee’s financial responsibility statutes. First, when must a motorist prove his or her financial responsibility? Second, how may a motorist prove his or her financial responsibility? Third, what kind of liability insurance, as a substantive matter, will provide sufficient proof of financial responsibility?

A.

When Must a Motorist Prove Financial Responsibility?

An accident-free motorist “is at liberty to own and operate a motor vehicle without any insurance coverage or with as little insurance coverage as desired.” McManus v. State Farm Mut. Auto. Ins. Co., 225 Tenn. at 109, 463 S.W.2d at 703. Requiring proof of financial responsibility comes into play only after a motorist has been involved in an accident resulting in death, personal injury, or property damage in excess of four hundred dollars. See Tenn.Code Ann. § 55-12-104(a). These motorists must report the accident to the Commissioner of Safety.

If the Commissioner later determines that there exists a reasonable possibility that the motorist who reported the accident will be ordered to pay damages, Tenn.Code Ann. § 55-12-105(a) (1998) empowers the Commissioner to revoke the license and registration of resident motorists or to revoke the driving privileges of non-resident motorists. To avoid revocation, a motorist must prove financial responsibility. See Tenn.Code Ann. § 55-12-105(a). Most commonly, this provision requires the motorist to demonstrate that he or she has the present financial ability to satisfy any judgment arising out of the car accident. This is sometimes referred to as the “present ability” requirement. See The Tennessee Motor Vehicle Financial Responsibility Act, 21 Tenn.L.Rev. at 343-44.

There is a second, related circumstance in which a motorist will be required to demonstrate financial responsibility. A motorist whose driving privileges have been revoked under Tenn.Code Ann. § 55-12-105(a) may reinstate his or her license, registration, and driving privileges only by meeting the requirements of Tenn.Code Ann. § 55-12-108(a) (1998) and by presenting proof of financial responsibility. See Tenn.Code Ann. §§ 55-12-108(a), - 118(c). By requiring proof of financial responsibility before restoring a motorist’s driving privileges, the statute requires the motorist to demonstrate that henceforth he or she will be able to satisfy any damage claims arising out of owning and operating an automobile. See 1 Alan I. Widiss, Uninsured and Undennsured Motorist Insurance § 1.3 (rev. 2d ed.1999); see generally House v. O’Grady, 35 Ohio Misc. 20, 299 N.E.2d 706, 707-08 (Ohio C.P.1973) (holding that driver’s license may be suspended when driver has not established future ability to pay for potential liability). This requirement is sometimes referred to as the “future ability” requirement. See The Tennessee Motor Vehicle Financial Responsibility Act, 21 Tenn.L.Rev. at 344-45.

The record in this case indicates that the Commissioner had not revoked Mr. Sanders’s driving privileges in Tennessee. Accordingly, this case involves Mr. Sanders’s obligation to prove financial responsibility to forestall having his driving privileges revoked because of the May 1993 accident in Sequatchie County.

B.

How May a MotoRist Prove Financial Responsibility?

Tennessee’s financial responsibility statues provide four ways for a motorist to demonstrate his or her financial responsibility. A motorist may file notarized releases executed by all persons who filed a claim stemming from the accident. See Tenn.Code Ann. § 55 — 12—105(b)(4). Short of obtaining releases, a motorist may demonstrate financial responsibility three other ways. First, the motorist may file with the Commissioner written proof that he or she has insurance coverage. See Tenn. Code Ann. § 55 — 12—105(b)(1). Second, the motorist may execute and file a bond with the Commissioner. See Tenn.Code Ann. § 55-12-105(b)(3). Third, the motorist may file a cash deposit with the Commissioner. See Tenn. Code Ann. § 55-12-105(b)(2).

Motorists seeking to demonstrate financial responsibility by proving that they are insured may submit a written certificate of insurance. See Tenn.Code Ann. §§ 55-12-119 to -121, and -137 (1998). Filing an insurance policy is sometimes referred to as “certifying” the policy. See, e.g., Tenn.Code Ann. §§ 55-12-102(7), -123 (1998). For states that have adopted financial responsibility statutes, certifying an insurance policy satisfies the requirement that the motorist demonstrate financial responsibility. See, e.g., Wisdom v. Stonewall Ins. Co., 139 Ill.App.3d 1082, 94 Ill.Dec. 412, 487 N.E.2d 1289, 1291-92 (1986); Dairyland Ins. Co. v. Finch, 32 Ohio St.3d 360, 513 N.E.2d 1324, 1326 (1987) overruled on other grounds by State Farm Auto. Ins. Co. v. Alexander, 62 Ohio St.3d 397, 583 N.E.2d 309, 312 (1992).

C.

What Kind of Liability Insurance Provides Evidence of Financial Responsibility?

For written proof of automobile liability insurance to satisfy the requirement of showing financial responsibility, the tendered policy must be issued by an insurance company or surety company licensed to do business in this state and must provide security not less than the amounts specified in Tenn.Code Ann. § 55-12-102. See Tenn.Code Ann. § 55-12-107(a) (1998). Tenn.Code Ann. § 55-12-102(12)(C)(ii) requires, as one option for any period after December 31, 1989, “[a] split-limit policy with a limit of not less than twenty-five thousand dollars ($25,000) for bodily injury to or death of one (1) person, not less than fifty thousand dollars ($50,000) for bodily injury to or death of two (2) or more persons in any one (1) accident, and not less than ten thousand dollars ($10,000) for damage to property in any one (1) accident.”

A non-resident motorist may certify and rely on a policy issued outside of Tennessee so long as the insurer is licensed to do business in Tennessee and meets two other requirements. Tenn.Code Ann. § 55-12-121 states that the Commissioner shall accept the certifícate of insurance if the insurer complies with the following conditions:

(1) The insurance carrier shall execute a power of attorney authorizing the Commissioner to accept service on its behalf of notice or process in any action arising out of a motor vehicle accident in this state; and
(2) The insurance carrier shall agree in writing that such policies shall be deemed to conform with the laws of this state relating to the terms of motor vehicle liability policies issued therein.

In this case, Mr. Sanders certified his Dairyland automobile liability insurance policy after the accident to avoid having to make a cash deposit or having to file a bond with the Commissioner to prove his financial responsibility arising out of his May 1993 accident with Ms. Burress. The personal injury liability limits of the Dairyland policy, on their face, are below the minimum liability limits required by Tenn-Code Ann. § 55-12-102(12)(C)(ii). For us to determine whether Dairyland’s clause on financial responsibility operates with Tennessee’s financial responsibility laws to automatically increase the policy limits to the minimum required in this state, we must now turn to the Dairyland policy.

III.

DAIRYLAND’S INSURANCE POLICY

Both parties correctly point out that we must construe Dairyland’s policy according to Georgia law because it was issued in Georgia to a Georgia resident. See Kustoff v. Stuyvesant Ins. Co., 160 Tenn. 208, 212-18, 22 S.W.2d 356, 358 (1929); Hutchison v. Tennessee Farmers Mut. Ins. Co., 652 S.W.2d 904, 905 (Tenn.Ct.App.1983). Dairyland’s policy is a “plain English” policy as required by Ga. Code Ann. § 33-3-25 (1992). However, written English, no matter how ostensibly “plain,” requires some figuring out by the reader. Words, after all, are only symbols that point to other objects and concepts besides themselves. See generally Samuel I. Hayakawa, Language in Thought and Action 20-28 (4th ed.1978) (discussing general semantics). For readers attempting to discover the meaning of words syntactically strung together into phrases and sentences, “[everything hangs on context and purpose.” Bryan A. Garner, The Elements of Legal Style 7 (1991).

Georgia’s legal principles governing the interpretation and construction of insurance contracts are not dissimilar from Tennessee’s. Under Georgia law, insurance contracts are to be construed according to the entirety of their terms. See Ga.Code Ann. § 33-24-16 (1996); B.L. Ivey Constr. Co. v. Pilot Fire & Cas. Co., 295 F.Supp. 840, 848 (N.D.Ga.1968) (applying Georgia law). Courts must give meaning to every contractual term rather than construe any term so as to render it meaningless. See North Augusta Assocs. Ltd. P’ship v. 1815 Exchange, Inc., 220 Ga.App. 790, 469 S.E.2d 759, 762 (Ga.Ct.App.1996).

In discerning the import of words in an insurance policy, the courts should give the words used their ordinary meanings. See Kytle v. Georgia Farm Bureau Mut. Ins. Co., 128 Ga.App. 109, 195 S.E.2d 787, 789 (1973). If there is any material ambiguity, i.e., “an uncertainty of meaning or expression,” Wood v. Phoenix Ins. Co., 199 Ga. 461, 34 S.E.2d 688, 692 (1945), in a policy term, then the policy is to be construed in favor of the insured to provide maximum coverage. See Ryan v. State Farm Mut. Auto. Ins. Co., 261 Ga. 869, 413 S.E.2d 705, 707 (1992).

Most importantly, when construing the terms of an insurance policy, the test is not what a sophisticated insurance company may have intended a term to legally signify, but rather what a reasonable person would understand the words to mean. See Major v. Allstate Ins. Co., 207 Ga.App. 805, 429 S.E.2d 172, 173 (1993). In Georgia, insurance contracts are to be read in accordance with the reasonable expectations of the insured where at all possible. See Richards v. Hanover Ins. Co., 250 Ga. 613, 299 S.E.2d 561, 563 (1983); Home Ins. Co. v. Sunrise Carpet Indus., Inc., 229 Ga.App. 268, 493 S.E.2d 641, 644 (1997).

Dairyland’s argument rests on the provision in its policy regarding compliance with other states’ financial responsibility laws. The provision states:

Financial Responsibility Laws
When this policy is certified as future proof of financial responsibility, this policy shall comply with the law up to the minimum limits required to the extent required and not in excess of the minimum limits.

Dairyland interprets this provision to apply only when its policyholder has had his or her driving privileges revoked and must demonstrate future financial responsibility in order to have his or her driving privileges reinstated. In effect, Dairyland is seeking to make the words “future proof of financial responsibility” a legal term of art. We reject Dairyland’s proposed construction because it is antithetical to the declared public policy on insurance in Georgia and because it is not in harmony with one of the avowed objects of Dairyland’s own policy — that it be readily understandable to the consumer.

“Future” is a commonly understood everyday word. When used as an adjective, it connotes something that is to be, or will be, hereafter. It relates to a time to come or to an event that is yet to happen. See VI The Oxford English Dictionary 295 (2d ed.1989). Considered in that sense, the word “future” is entirely consistent with the common understanding of the purpose of insurance in general — a hedge against unarrived, yet impalpably looming potential misfortune. As far as this record shows, Mr. Sanders had no need to demonstrate his financial responsibility when he first obtained his Dairyland policy. Accordingly, it would have been entirely reasonable for him to have understood the clause relating to financial responsibility laws as providing him with legally adequate coverage if he was ever in the future required to certify his policy to demonstrate his financial responsibility.

Georgia’s principles of contract construction, like Tennessee’s, permit the courts to consider the conduct of contracting parties when called upon to construe the meaning of an ambiguous contract provision. See Transkey, Inc. v. Adkinson, 225 Ga.App. 457, 484 S.E.2d 30, 32 (1997). Mr. Sanders’s conduct following the 1993 accident with Ms. Burress is entirely consistent with an understanding that the insurance policy would provide him with adequate coverage if he should ever have to use it to demonstrate his financial responsibility. Mr. Sanders himself informed the Commissioner that he had liability coverage and relied on his insurance coverage to gain an exemption from the requirement that he either post a bond and or make a cash deposit.

IV.

The Effect of Tenn.Code Ann. § 55-12-121(2)

Tenn.Code Ann. § 55-12-121 permits non-resident motorists to demonstrate their financial responsibility by providing the Commissioner with a written certificate of insurance issued by an insurance company licensed to transact business in the state where the vehicle is registered. When an insurer issues such a certificate, Tenn.Code Ann. § 55-12-121(2) requires the insurer to agree that its policy will “conform with the laws of this state relating to the terms of motor vehicle liability policies issued therein.” In order to conform to the laws of this state, a policy must afford at least $25,000 in coverage for bodily injury. See Tenn.Code Ann. § 55-12-102(12)(C)(ii).

Dairyland certified Mr. Sanders’s policy to the Commissioner. The legal effect of its action is to increase the limits of the policy’s underinsured motorist coverage from $15,000 to $25,000. This result does not necessarily increase Dairyland’s risk of loss. Dairyland, anticipating the eircum-stances presented in this case, included a provision in its policy providing that it is entitled to reimbursement from Mr. Sanders if it is required to provide increased monetary coverage to comply with other states’ financial responsibility laws. While the question of reimbursement is not currently before us, Dairyland’s inclusion of this provision in its policy indicates that it was aware of the risk and that it chose to deal with it with this reimbursement provision.

V.

We affirm the summary judgment concluding that the language of Dairyland’s policy and Tennessee’s financial responsibility statutes require Dairyland to increase its personal injury policy limits in this case to $25,000 per person. Accordingly, we remand the case to the trial court for further proceedings and tax the costs of this appeal to Dairyland Insurance Company and its surety for which execution, if necessary, may issue.

      . This limit corresponds to the minimum amount of insurance required in Georgia to demonstrate a motorist’s financial responsibility. See Ga.Code Ann. § 33-34-3(a)(l), -4 (1996); Ga .Code Ann. § 40-9-2(5)(A), -37(a) (1997).

      . Tenn.Code Ann. § 55-12-104(a) (1998) requires operators of motor vehicles involved in serious accidents in Tennessee to report the accident to the Commissioner of Safety within twenty days after the accident.

      . See Tenn.Code Ann. § 55-12-102(7) & (12)(C)(ii) (1998).

      . As a practical matter, the Division of Financial Responsibility usually handles this in a more informal way. Once it receives the post-accident owner/operator report showing a motorist as insured, the Division confirms the coverage in writing by contacting the listed insurer by letter.

      . As used in this context, "certify” means essentially to vouch for in writing. See Black’s Law Dictionary 228 (6th ed.1990). Insurance policies used to provide proof of financial responsibility ordinarily must be certified by the insurer. See Cincinnati Ins. Co. v. Kramer, 91 Ohio App.3d 528, 632 N.E.2d 1333, 1335 (1993).

      . For this reason Dairyland’s reliance on both McManus v. State Farm Mut. Auto. Ins. Co. and Mississippi Farm Bureau Mut. Ins. Co. v. Iones, No. 02A01-9607-CV-00151, 1997 WL 710926 (Tenn.Ct.App. Nov.14, 1997) perm. app. denied (Tenn. May 26, 1998) is misplaced. In neither of those cases had the insurance company certified its policy to the Commissioner of Safety. See McManus v. State Farm Mut. Auto. Ins. Co., 222 Tenn. at 111, 463 S.W.2d at 704; Mississippi Farm Bureau Mut. Ins. Co. v. Iones, 1997 WL 710926, at *1. In this case, Dairyland certified its policy. We take note that Dairyland understands that certification of its policy has legal significance in triggering the application of state financial responsibility laws. See Dairyland Ins. Co. v. Morse, 771 F.Supp. 297, 298 (E.D.Mo.1991).

      . The preface to Daiiyland’s insurance policy states that "[a]t Dairyland, we’re always looking for new and better ways to serve your insurance needs” and that "[y]our insurance protection is important to you. That’s why it’s important for you to be able to read and understand your policy. Now you can.”

      . State Farm points out another commonsense way to understand "future” in the context of this case. As State Farm notes, liability does not immediately attach to a tortfeasor upon the occurrence of an accident, but occurs at some future date when a judgment is rendered against the tortfeasor, or when he or she accepts responsibility for the accident. By showing proof of liability insurance coverage, a vehicle owner/operator and the insurer are giving assurance to the Commissioner that coverage is available up to the minimum limits required by Tennessee’s financial responsibility laws in the event of a future judgment relative to the accident. See also State Capital Ins. Co. v. Nationwide Mut. Ins. Co., 318 N.C. 534, 350 S.E.2d 66, 68-69 (1986) (applying an automobile insurance policy with a financial responsibility laws provision worded almost identically with Dairyland’s in this case).

      . Dairyland's policy states: “You [the insured] must reimburse us if we have to make a payment that we would not have to make if this policy were not certified as proof.”


source: Caselaw Access Project

author: TIPTON, J.,

license: Public Domain

text:
    STATE of Tennessee v. Robert H. HARPER, Jr.
    Court of Criminal Appeals of Tennessee, at Jackson.
    April 6, 2000.

      Terry L. Wood, Corinth, MS, for the appellant, Robert H. Harper, Jr.
    Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; G. Robert Radford, District Attorney General; and John W. Overton, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.
   OPINION

TIPTON, J.,

delivered the opinion of the court, in which

WELLES, J., and LAFFERTY, Sr.J., joined.

The defendant, Robert H. Harper, Jr., appeals upon a certified question of law his conviction in the Hardin County Circuit Court for felonious possession of marijuana for which he received a three-year sentence as a Range I, standard offender and a fine of five thousand dollars. The defendant asserts that the stop of his vehicle was not based upon reasonable suspicion and that the subsequent warrantless search was unlawful. We conclude that the stop and search were improper, and we reverse the judgment of conviction and dismiss the case.

The defendant, Robert H. Harper, Jr., appeals as of right from his conviction in the Hardin County Circuit Court pursuant to a guilty plea to possession of marijuana with intent to manufacture, deliver or sell, a Class D felony. He received a three-year sentence as a Range I, standard offender, with six months to be served in the county jail and the remainder to be served on probation. He was fined five-thousand dollars. The defendant reserved the following certified questions of law that are dispositive of the case, see Tenn.R.Crim.P. 37(b)©®:

(1) whether or not on April 8th, 1998, the officer of the Hardin County Sheriffs Department had reasonable suspicion supported by specific and articu-lable facts to stop the vehicle of the Defendant; and
(2) whether or not the search of the Defendant’s vehicle on or about April 8th, 1998, as a result of the aforementioned stop and without a warrant was lawful.

We hold that the officer did not have reasonable suspicion to stop the defendant’s vehicle, and we reverse the judgment of conviction and dismiss the case.

At the motion to suppress hearing, Sammy Davidson testified that he was the Sheriff of Hardin County at the time the defendant was arrested. Sheriff Davidson said that a burglary had occurred at the Tentucky One Stop on Highway 128 South a couple of nights before the defendant was stopped. He said that he had received a description of a vehicle that was possibly involved in the burglary and that the description was originally from Max Ray Aexander, who lived behind the Ten-tucky One Stop. He said that Mr. Aexan-der provided the description of the vehicle to Sammy Shutt, the store owner, who then provided the description to Investigator Fielder. Sheriff Davidson testified that he received the description either from Fielder or Fielder’s report. He said he never spoke to Mr. Alexander or Mr. Shutt regarding the description of the vehicle. Sheriff Davidson said that he provided the description to his deputies, including Deputy John Murphy, and that the description was of a noisy, older model, dark colored pickup truck with a short wheelbase and round tail lights.

On April 8, 1998, the defendant was traveling east on U.S. Highway 64, proceeding out of Crump and into Savannah, Tennessee, when Deputy John Murphy stopped him. The defendant was driving a dark colored, 1968 Chevrolet pickup truck with an Oklahoma license plate. The pickup truck had a toolbox in the bed. Sheriff Davidson testified that he went to the scene after hearing Deputy Murphy report that he had stopped an older model pickup truck. When he arrived, Sheriff Davidson asked the defendant where he was going. He testified that the defendant first told him that he was going to Mountainview but then said he was going to Monteagle. Sheriff Davidson said that the defendant denied having any drugs, guns or money in the truck. He said that when he asked the defendant if he could look in the truck, the defendant initially replied that he was in a hurry. Sheriff Davidson said that when he told the defendant it would not take long, the defendant said, “Go ahead.”

Sheriff Davidson testified that he searched the inside of the truck and the bed. In the bed of the truck, he found a toolbox, and when he raised the toolbox lid, he found a metal container located underneath. Sheriff Davidson said that the defendant told him that the toolbox was rusted out and that he kept the container underneath to keep the tools from falling out of the truck bed. Sheriff Davidson found two cardboard boxes inside the metal container, and when he removed the boxes, he found a large amount of marijuana. Sheriff Davidson testified that he later learned that a station wagon, not a pickup truck, had been involved in the burglary, but he said that the defendant’s truck was very consistent with the description of the vehicle he had been provided.

Deputy John Murphy testified that he received a description of a vehicle from Sheriff Davidson that was supposed to have been involved in a burglary the night before. He said that the defendant’s vehicle fit the description he was given of a black, older model vehicle with a toolbox in the back. He said that when he stopped the defendant, he “had no idea” whether the defendant was involved in the burglary but that the defendant’s dark, older model truck with a toolbox in the back was enough for him to check. He said that he saw the defendant’s Oklahoma license plate before he stopped him.

The defendant denied telling Sheriff Davidson that he was going to Monteagle or Mountainview. He said he told the sheriff that he was going to Lake Chiea-mauga. He said he did not give Sheriff Davidson permission to search his truck.

The trial court denied the motion to suppress. The court found that Officer Murphy had reasonable suspicion to stop the defendant because “the description of the vehicle [involved in the burglary] was the same or similar to the description of the vehicle that he actually stopped.” The court further found that the defendant voluntarily consented to the search of his vehicle and that, regardless, Sheriff Davidson “probably” had probable cause to search “based upon the observations of indicia of things that might lend themselves to drug trafficking.”

Initially, we note that a trial court’s factual findings on a motion to suppress are conclusive on appeal unless the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996); State v. Jones, 802 S.W.2d 221, 223 (Tenn.Crim.App.1990). The application of the law to the facts as determined by the trial court is a question of law which is reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.1997).

The defendant first contends that the trial court erred by finding that Officer Murphy had reasonable suspicion to stop him. Relying upon State v. Simpson, 968 S.W.2d 776, 781-82 (Tenn.1998), he contends that the information obtained by the officers must be “sufficiently reliable” and must then justify reasonable suspicion. He argues that the description of the vehicle was unreliable in that it involved multiple layers of hearsay and that it was too scant to have provided Officer Murphy with reasonable suspicion. The state contends that the defendant failed to object to the unreliability of the description and that the description nevertheless provided Officer Murphy with specific, articulable facts to justify reasonable suspicion.

First, we reject the state’s contention that the defendant waived the issue of the reliability of the description by failing to object at the suppression hearing. The purpose of the suppression hearing was to determine whether rehable information existed to create specific, articulable facts to justify a reasonable suspicion. In essence, the suppression hearing itself was an objection to the reliability of the evidence. We do not view the issue to be waived.

It is well-settled that an automobile stop constitutes a seizure within the meaning of both the Fourth Amendment of the United States Constitution and Article I, Section 7 of the Tennessee Constitution. See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 450, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412 (1990); State v. Pulley, 863 S.W.2d 29, 30 (Tenn.1993). The police may stop a vehicle if they have reasonable suspicion based upon specific and articula-ble facts that a criminal offense has been or is about to be committed. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); Hughes v. State, 588 S.W.2d 296, 305 (Tenn.1979). This determination is based upon the totality of the circumstances, which includes, but is not limited to, objective observations, information obtained from other police officers or agencies, information obtained from citizens, and the rational inferences and deductions that a trained police officer may draw from the facts and circumstances. United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981); State v. Watkins, 827 S.W.2d 293, 294 (Tenn.1992).

We begin our analysis of this case by noting that the description of the vehicle was initially related by Mr. Alexander, the neighbor, who provided the information to Mr. Shutt, who in turn provided the information to Investigator Fielder. Sheriff Davidson received the information from Investigator Fielder, and Deputy Murphy received the information from Sheriff Davidson. We believe that Deputy Murphy’s reliance upon information provided by Sheriff Davidson, and Sheriff Davidson’s reliance upon information provided by Investigator Fielder was justified. Officers are entitled to rely upon information provided to them by other officers. See Whiteley v. Warden, 401 U.S. 560, 568, 91 S.Ct. 1031, 1037, 28 L.Ed.2d 306 (1971); State v. Moore, 775 S.W.2d 372, 378 (Tenn.Crim.App.1989). The problem, however, lies with the reliability of Mr. Alexander’s description to Mr. Shutt, and Mr. Shutt’s description to Investigator Fielder.

In Simpson, our supreme court considered whether information from a confidential informant, known to the officer, provided reasonable suspicion to effect an investigatory stop. While recognizing that the reasonable suspicion required for an investigatory stop is a less demanding standard than that required for probable cause, the court concluded that the factors set forth in State v. Jacumin, 778 S.W.2d 430, 436 (Tenn.1989), “are helpful in determining whether a tip is sufficiently reliable to support a finding of reasonable suspicion.” Simpson, 968 S.W.2d at 781. In Jacumin, our supreme court adopted the two-prong test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), which requires a showing of the informant’s veracity or credibility and his or her basis of knowledge.

Keeping the foregoing principles in mind, we question the reliability of the description. We note that the record is particularly scant with respect to exactly what Mr. Alexander saw and what he related to Mr. Shutt. Mr. Alexander, Mr. Shutt, and Investigator Fielder did not testify at the suppression hearing. Sheriff Davidson testified only that Mr. Alexander lived behind the Tentucky One Stop, heard the burglar alarm sound, and relayed information to Mr. Shutt about a truck that was “possibly” involved in the burglary. Presumably, the information he relayed was a description of a vehicle, but the record does not indicate, for example, whether Mr. Alexander saw the vehicle driving away from the store or driving in the vicinity of the store. Furthermore, we note that Mr. Alexander did not provide the information to the police but to Mr. Shutt, and the record does not indicate when Mr. Alexander provided the description to Mr. Shutt. See Simpson, 968 S.W.2d at 782 (noting that if an informant reports an incident to police at or near the time it occurs, the court can often assume the report is firsthand and reliable); Pulley, 863 S.W.2d at 32 (noting “the importance of the timing of the tip in assessing the reliability of the informant, for timing implies an eyewitness basis of knowledge”). In addition, the record shows that Mr. Alexander and Mr. Shutt were not interviewed regarding their descriptions of the vehicle to ensure that the descriptions were the same or to clarify what Mr. Alexander saw. Under these circumstances, we hesitate to say that the description was sufficiently reliable.

In any event, we believe that even if the information were sufficiently reliable, it did not provide Deputy Murphy with specific, articulable facts to support a finding of reasonable suspicion. First, it is unclear when the burglary occurred in relation to when the defendant’s vehicle was stopped. Sheriff Davidson' testified that the burglary occurred a couple of days before, and Officer Murphy testified that the burglary occurred the night before the defendant was stopped. The time that the burglary occurred in relation to when the defendant was stopped is important in determining whether Officer Murphy had reasonable suspicion to justify an investigatory stop. See Griffin v. State, 604 S.W.2d 40, 42 (Tenn.1980) (noting that in a robbery case, one factor to be considered in determining whether an officer has reasonable suspicion to justify an investigatory stop is whether the stop “was reasonably close to the robbery, both in time and space”). In any event, the record is clear that the stop was not immediately following or even within several hours of the burglary.

The only information upon which Deputy Murphy relied was that a dark, older vehicle with a toolbox in the back was supposed to have been involved in a burglary at the Tentucky One Stop. We believe that under the particular facts of this case, this information is simply not enough to warrant a reasonable suspicion that would justify an investigatory stop of the defendant. The United States Supreme Court has held that “reasonable suspicion, like probable cause, is dependent upon both the content of the information possessed by police and its reliability.” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990). Considering that the description of the vehicle was generic and based upon information of unproven reliability; the time lapse between the burglary and the stop; and the fact that the defendant, with an Oklahoma license plate, was stopped on U.S. Highway 64 as he entered the town where the burglary occurred, these circumstances combined show that under the facts of this case, Deputy Murphy lacked the specific, articulable facts necessary to create a reasonable suspicion that would warrant an investigatory stop. Thus, the stop was unlawful and the evidence obtained as a result of the stop should have been suppressed.

Although unnecessary to our resolution of the case, we will briefly address the defendant’s remaining argument that he did not consent to the search of his truck. “To pass constitutional muster, consent to search must be unequivocal, specific, intelligently given, and uncontaminated by duress or coercion.” State v. Brown, 836 S.W.2d 530, 547 (Tenn.1992). The trial court accredited the testimony of Sheriff Davidson that the defendant told the officer to “[g]o ahead” and search the truck, and the defendant has failed to show that the record preponderates against this finding. The defendant further asserts that assuming he did consent, the stressful nature of the circumstances, i.e., that the defendant was from out of state and was stopped and questioned about drugs, shows that his consent was not voluntary. We disagree. No evidence exists in the record of a coercive atmosphere that would negate the voluntariness of the defendant’s consent.

In consideration of the foregoing and the record as a whole, the conviction is reversed and the case is dismissed.


author: TOM GRAY, Justice.

text:
    O.B. UTLEY, Jr., et al., Appellants, v. MARATHON OIL COMPANY and Delhi Gas Pipeline Corporation, Appellees.
    No. 10-97-307-CV.
    Court of Appeals of Texas, Waco.
    June 28, 2000.
    Rehearing Overruled Nov. 22, 2000.

      Roy William Hill, Fairfield, Clinard J. Hanby, The Woodlands, for appellants.
    Greg White, McGregor & White, Waco, Jon David Ivey, Baker & Hostetler, L.L.P., Houston, for appellees.
    Before Chief Justice DAVIS, Justice VANCE and Justice GRAY.
   OPINION

TOM GRAY, Justice.

This is an oü and gas case. It arises from a lease that was executed by Utley, et al., on February 12, 1974. Utley brought suit to clear title to their property of Marathon’s oil and gas lease. Utley contended that the lease had expired due to the failure of Marathon to continue operations on the lease and failed to pay shut-in royalties in the proper amounts at the proper time. After 8 days of testimony and presentation of other evidence the jury answered questions which support a judgment that the lease had not expired. The trial court entered a judgment based upon the jury’s answers. We are asked to review the jury’s answers and the relevant law to determine if the jury’s answers and the judgment are proper. We affirm.

THE UTLEY B-l WELL

The oil and gas lease had a primary term of five years. It was scheduled to expire by its own terms as of February 12, 1979. Under the terms of the lease it would not expire at the end of the primary term as long as Marathon was then engaged in exploration on the property for oil and gas. The specific provision in the lease stated if Marathon was “... engaged in operations for drilling, mining or reworking any well or mine thereon, this lease shall remain in force so long as such operations or said additional operations are commenced and prosecuted (whether on the same or successive wells) with no cessation of more than ninety (90) consecutive days.... ” This is known as a “continuous operations clause.”

In late 1978, Marathon decided that it wanted to hold lease acreage that would otherwise expire by operations rather than by having to obtain new leases. Leasing costs had increased because of recent successful exploration in the area. There is nothing sinister about a decision to hold acreage by operations as a business alternative. It is an economic decision that the oil company must make based upon all the circumstances; whether to simply allow the lease to expire, negotiate a new lease or incur the cost and uncertainties of immediately pursuing exploration.

On December 14,1978, drfiling began on the Utley B-l well. It was drilled to its target depth on March 22, 1979. Marathon engaged in various tests of the well over the next several weeks. It is undisputed that the operations until early April, specifically April 16, 1979, continued the lease in effect.

On September 24,1979, Marathon began the necessary steps to complete the Utley B-l well in the Bossier Sand formation from which production was achieved in paying quantities. It is also undisputed that the operations which commenced on September 24, 1979, and subsequent production would have kept the lease from expiring at that time.

UTLEY’S CONTENTION REGARDING THE B-l

Utley’s theory at trial was that the operations between April 16, 1979 and September 24, 1979 were not in good faith or did not qualify as “continuous operations.” This would be a period of more than ninety consecutive days in which there were not good faith operations to cause the well to produce. If this occurred the lease expired by its express terms. The first question in the charge to the jury was whether operations on the B-l ceased for any period of longer than ninety consecutive days between February 12, 1979 and September 24, 1979. They answered “NO.” In issue two on appeal Utley contends the jury’s answer is not supported by legally or factually sufficient evidence.

THE EVIDENCE

There were two types of activities which occurred during this critical period of time. First, there were activities testing and trying to obtain production from the Cotton Valley Lime formation, which is a deeper geological formation than the Bossier Sand. The Cotton Valley Lime is a geological formation which had proven to be productive in the general area of the B-l. However, the B-l was outside the proven area of the productive Cotton Valley Lime formation and was thus classified as a “wildcat” well. At the time that the permit to drill the well was obtained, it was designated for a target depth in the Cotton Valley Lime. The other activity on the lease during this period of time was the construction of a pipeline to connect the well so that the gas produced could be sold to a gas marketing company.

TESTING THE COTTON VALLEY LIME

Both parties had expert witnesses testify regarding the merits of testing the Cotton Valley Lime formation for potential production. The experts explained the method by which oil and gas is trapped in pockets and how a particular well site is chosen. The experts explained to the jury the physical process of drilling, testing and completing a well. The experts also explained the various indications which may be present when drilling a well that would indicate the presence of oh or gas. They discussed standard industry practices as well as the specific process of drilling the B-l.

One of Utley’s experts testified that operations after April 14, 1979 were “non-prudent.” He also testified that he would not have recommended attempting to complete a well in the Cotton Valley Lime formation.

On cross examination, this expert admitted that based upon the drilling records, various events had occurred that indicated the possible presence of a zone in the Cotton Valley Lime capable of gas production. Specifically he acknowledged that various indicators (drilling break, gas show, oolitic limestone, lost circulation and fractured porosity) were all present while drilling the B-l. He also testified that if he was drilling a well and was presented with these indicators he would be “excited.” He also acknowledged that before you know for certain that a well will not produce in paying quantities, you must test it by perforating the casing. Ultimately, he also admitted that he had previously given sworn deposition testimony that the operations from April 14, 1979 to April 21, 1979 were not imprudent.

Another expert called by Utley testified that by March 17,1979, the B-l could have been, and should have been determined to be non-productive by anyone with the facts then available. He testified positively and firmly that based upon his examination of the data it was his opinion that it was obviously not going to be productive from the Cotton Valley Lime and thus the operations to complete the well in the Cotton Valley Lime did not keep the lease from terminating. Thus, it was his opinion that the lease terminated at that time as to all acreage not held by some other specific provision of the lease.

On cross examination, he explained he assumed during that time Marathon was trying to get a sustained gas flow from the Cotton Valley Lime but “... they’re not doing very good at it, but that’s what they’re trying.” He also acknowledged there was some gas flow established after a hydraulic “fracing” operation. But, this flow was accompanied with a large volume of salt water which would have a disposal cost.

Marathon offered the testimony of their own experts as well as employees of the company. One of the experts explained why Marathon first completed the well in the Cotton Valley Lime. He testified April 21 or 22, 1979, was the last day of testing before the hydraulic fracture was performed in September. Marathon’s decision to try to make the Cotton Valley Lime productive was based partially upon the fact that the well was producing 185,000 cubic feet of gas per day during the April testing and that with a hydraulic fracture operation completed they expected 1 million to 1.5 million cubic feet of gas per day. It was his testimony that this formation was not a dry hole.

Marathon’s expert explained that when initially testing the well, the tubing must be perforated in the lowest formation first to actually determine the productivity of that formation. If the lower formations are not productive, the perforations must be made further up the bore hole to other zones until a well could be completed in a satisfactory zone.

It is undisputed that the process to fracture the Cotton Valley Lime formation began on August 18, 1979. The results of the hydraulic fracture operation were not as successful as Marathon had hoped but it was promising enough that they did not want to permanently abandon this formation. Marathon concluded they would set a temporary plug between the Cotton Valley Lime and the Bossier Sand to allow further testing and production from higher up in the well. The efforts to set the temporary plug failed. The well was then permanently plugged back to the Bossier Sand from which production was obtained.

Another of Marathon’s experts, a lawyer/petroleum engineer, testified that the Cotton Valley Lime was the potential for a whole new zone of production for Utley and that Marathon had spent $440,000 trying to make that zone productive. His testimony was that the Cotton Valley Lime was not an unproductive zone, but that Marathon recognized that after fully testing the Cotton Valley Lime they “just had a better economic opportunity” by completing a well in the Bossier Sand formation.

A third expert for Marathon, testified that he had reviewed a tremendous volume of information regarding the B-l. He testified firmly and positively that it was his opinion that the operations on the B-l “were reasonable and prudent.” He also testified that there was no break in operations on the B-l for more than 90 days.

PIPELINE CONSTRUCTION

The testimony is generally undisputed that during the time from April 16, 1979 until September 24, 1979 a pipeline was being constructed on the property. We accept as undisputed that the sole purpose of the pipeline was to connect this particular well to the gas gathering system to transport the gas to market for ultimate sale. Utley contends pipeline construction is not “operations” that will extend the lease.

Utley did not object to the charge for failure to include an instruction that would prevent the jury from considering pipeline construction as operations. Utley did not request such an instruction. Without this guidance on the law, the jury may have considered the pipeline construction as operations as argued by Marathon, or disregarded it as argued by Utley. Because the issue was submitted broad-form, we have no way of determining what activity the jury considered as “operations.”

To obtain a reversal, Utley must show there is legally or factually insufficient evidence to support the jury’s verdict. In other words, even if Utley is right that pipeline construction is not “operations” as used in the lease, Utley must still show that there is insufficient evidence of other “operations” to support the jury’s answer. Thus, if there is legally and factually sufficient evidence to support the jury’s determination that the lease did not expire for lack of “operations” without regard to the pipeline construction, we need not consider whether pipeline construction constitutes “operations” as that term is used in the lease.

STANDARD OF REVIEW

When we decide a legal insufficiency issue, we consider only the evidence and inferences which tend to support the contested issue and disregard all evidence and inferences to the contrary.. Merrell Dow Pharmaceuticals, Inc. v. Hamer, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998). We will sustain a no evidence point if: (a) there is a complete absence of evidence of a vital fact; (b) we are barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. Id. (citing Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362-63 (I960)). “More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’ ” Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995) (quoting Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994)).

A factual sufficiency challenge requires us to consider and weigh all the evidence, not just the evidence which supports the verdict. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam); In re King’s Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951). We will “set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Cain, 709 S.W.2d at 176; Blankenship v. Mirick, 984 S.W.2d 771, 774 (Tex.App.—Waco 1999, writ denied).

APPLICABLE LAW — GOOD FAITH OPERATIONS

The trial court instructed the jury “... that operations' means actual work being done in a good faith endeavor to cause a well to produce oil and/or gas in paying quantities.” There was no objection or attempt to limit what evidence the jury could consider.

There is not much Texas authority defining “operations” in the context of those operations that .will keep an oil and gas lease alive by continuous operations. There are a few decisions which discuss “reworking operations” that are worth mentioning. In Phillips, the Texarkana Court implicitly, if not explicitly, approved an instruction defining “reworking operations” as:

You are instructed that after the Rudd-Hall well was completed and failed to produce on its original test, any and all efforts, acts, work or operations thereafter done in or on said well in a good faith effort to cause said well to produce oil or gas in paying qualtities (sic) are to be considered by you as reworking operations as that term is used in Special Issue No. 1.

Phillips Petroleum Co. v. Rudd, 226 S.W.2d 464, 466 (Tex.Civ.App.—Texarkana 1949, no writ).

In Rogers, the Court noted a somewhat similar instruction which read as follows:

You are instructed that the term “reworking operations,” as used herein, means actual work or operations which have theretofore been done, being done over, and being done in good faith endeavor to cause a well to produce oil and gas or oil or gas in paying quantities as an ordinarily competent operator would do in the same or similar circumstances.

Rogers v. Osborn, 152 Tex. 540, 261 S.W.2d 311, 313-314 (1953). However, the Court backed away from validating the instruction by stating: “We hold there is some evidence supporting this finding [of ‘reworking’ or ‘drilling’] but do not pass upon the trial court’s definition of the words drilling and reworking.” Id. at 314.

In Cox, the Amarillo Court concluded that the term “reworking operations,” meant “... any and all actual acts, work or operations in which an ordinarily competent operator, under the same or similar circumstances, would engage in a good faith effort to cause a well or wells to produce oil or gas in paying quantities.” Cox v. Stowers, 786 S.W.2d 102, 105 (Tex.App.—Amarillo 1990, no writ). See also Hydrocarbon Management, Inc. v. Tracker Exploration, Inc., 861 S.W.2d 427, 438 (Tex.App.—Amarillo 1993, no writ).

In the absence of an objection to the instruction we must consider the evidence in light of the definition of operations given by the trial court. The instruction defined the conduct which the jury could consider in determining if operations on the leased property had ceased for a period of more than 90 consecutive days.

APPLICATION REGARDING THE UT-LEY B-l

This is a classic case of competing experts. Neither party produced a “smoking gun.” Thus it was left to the jury to resolve disputed issues of fact by weighing the credibility of the witnesses and determining the weight to give the evidence. Even if the evidence regarding the pipeline is not considered, both parties had a substantial amount of evidence in support of their positions. There were many pages of exhibits introduced for the jury’s consideration. The jury resolved the factual issue against Utley, in favor of Marathon and determined that operations had not ceased on the Utley B-l well for more than 90 consecutive days between April 16, 1979 and September 24, 1979. We see no reason to disturb this finding. Utley’s second issue is overruled. We do not reach the issue of whether the pipe-line construction constituted operations.

SHUT-IN ROYALTIES

In issue one on appeal, Utley asks the question: “Did the portions of the mineral lease included in Units No. 1, A, and C terminate in 1983 for failure to pay shut-in royalties in the proper amount or at the proper time?” Under this single issue Utley raises four sub-issues. Essentially Utley complains that the jury’s determination that the three wells were not shut-in for more than 90 consecutive days in 1983 is not supported by any evidence, that the contrary was established as a matter of law, and that the jury’s answer should be disregarded. Next Utley argues that the construction of the lease is a question of law as to the required amount of shut-in royalties. It is under this sub-issue Utley presents the question of whether a delay rental clause expressed in absolute dollars ($1,842.92) rather than dollars-per-acre, if referenced as the amount of shut-in royalty, requires the payment of the absolute dollar amount for each portion of the leased acreage that is included in a pooled unit or whether the shut-in royalty can be reduced for the number of lease acres that are included in the pooled unit. In essence, under the terms of this lease, was the shut-in royalty on pooled units subject to proportionate reduction? Utley contends, under the terms of this lease, there is no proportionate reduction provision for shut-in royalties on pooled units and thus the $1,842.92 dollars must be paid for each pooled unit shut-in, regardless of how many pooled units contain some portion of the Utley lease acreage. Next, Utley contends that the evidence is legally and factually insufficient to prove that the shut-in royalty payments made were in the proper amount or at the proper time.

The sub-issues presented are complicated, and consumed much of the time at trial. However, we find that an answer to these questions is not necessary to a full disposition of this appeal. As discussed above the jury determined that the B-l well did not suffer a 90 day cessation of operations in 1979. The jury determined in special question five that the acreage held by B-l was not subject to what is commonly called a Freestone Rider or Pugh Clause. A Freestone Rider generally provides that a well on pooled acreage holds only those acres in the lease that are actually included in the pooled unit designation. On the other hand, a lease-hold well, as its name implies, generally holds all the leased acreage, even if the acreage is not in the production unit for the leasehold well. The B-l was a lease-hold well. It was not included in any pooled unit. Thus the B-l held all lease acreage. In this situation, we must look past the question posed by Utley to answer the question: What would be the result of failing to pay shut-in royalties for the pooled acreage?

This question has been answered by the Commission of Appeals in 1930. Duff v. Du Bose, 27 S.W.2d 122,124 (Tex.Comm’n App.1930, judgm’t affirmed). The Court held that acreage not held by pooling reverted to or was controlled by the other provisions of the lease. Thus, if for some reason the pooled acreage was no longer held under the pooling provision of the lease, it is still part of the acreage leased, and thus, one must determine what is the status of the underlying lease to determine if the lease has terminated as to the pooled acreage. In Duff, as in the present case, the lease had a continuous operations clause. At the time the pooling agreement ended, the lessee did not commence operations and the Court held that the lease expired by its terms. As the Court explained:

When the lease was reconveyed to the defendant [after the pooling agreement was canceled] there was no production of any character from the land, and there has been no production nor effort to obtain production since it was recon-veyed to the defendant, and neither have any rentals been paid or tendered. Such being the case the lease has forfeited and terminated by its own terms.

Id. As applied to the present case, if the shut-in royalties were not paid on the acreage being held by a well on pooled acreage, whether or not the acreage was still subject to the lease would then be depen-dant upon other provisions of the lease.

As discussed above, the jury determined that the B-l held all acreage, not just the acreage in the production unit. The jury’s finding in this regard is not attacked on appeal. Thus, even if Marathon failed to pay shut-in rentals in the amounts and at the times due, as long as the lease was held by production or operations on the B-1, or by other means, the lease, even as to the pooled acreage, did not expire.

However, the jury also determined that the B-l well was shut in for a period longer than 90 consecutive days between June 1 and November 8, 1983. Although the jury determined that the proper amount of shut-in royalties had been paid on the B-l, this does not end the analysis. The lease clearly provided that the acreage being held solely by the payment of shut-in royalties for the B-l (all non-pooled acreage) could be proportionately reduced to exclude the acreage being held in the pooled units. Thus, if Marathon was relying on only the payment of shut-in royalties for the B-l to hold all the acreage in the lease, Marathon could not utilize the proportionate reduction provision for un-pooled acreage to reduce its payments. However, a payment of shut-in royalty is not the only provision that would hold all the acreage under the lease.

Continuous operations could also hold all the lease acreage. In this case, during the time the B-l was shut-in, it is undisputed that another lease-hold well was commenced and completed. The spud date (the date drilling began) on the Utley H-l well was July 18, 1983. It was drilled to completion, completed and then shut-in on October 4, 1983. It remained a lease-hold well until November 7, 1983 when a pooling designation was filed. Thus, there was a maximum of only 48 days after shut-in on the B-l before drilling on the H-l began (June 1 to July 18), and only 36 days after the H-l well was completed and shut-in (October 4 to November 8) during which there was no production and no operations. Based upon the operations on the H-l, there was no period between June 1, 1983 and November 8, 1983 during which operations on the Utley lease ceased for a period longer than 90 consecutive days.

Under these facts, payment or non-payment of shut-in royalties is immaterial All lease acreage not held under the pooling provision, was still subject to the other provisions of the lease. The other provisions of the lease provided that the lease would not terminate as long as there was production or operations without cessation for more than 90 consecutive days. Utley has not proven a cessation of production or operations on the lease for more than 90 consecutive days and the uncontroverted evidence in the record is that there was no cessation of operations for more than 90 consecutive days during the period at issue in 1983. Thus we need not address the amount or timing of payments of shut-in royalties.

Issue one is overruled.

CROSS APPEAL-REDUCTION OP ATTORNEY FEES

By cross-appeal, Marathon complains that the trial court abused its discretion in reducing the jury award for attorney fees. Utley had sued on numerous theories. Marathon had asserted numerous defensive theories. The claim for declaratory judgment was the only theory which would support an award of attorney fees. The jury returned a verdict for attorney fees in favor of Marathon in the amount of $750,000. The trial court entered a judgment for this amount. In response to a post trial motion, the trial court reduced the award to $150,000. The attorney fees incurred in this case are substantial. There was ample documentary evidence and testimony regarding the causes of action plead, discovery undertaken, other pretrial procedures and trial tune necessary to obtain the judgment in Marathon’s favor.

Under the declaratory judgments act, the granting of attorney’s fees is with the discretion of the trial court. See Tex. Pkac. & Civ. RemUode Ann. § 37.009 (Vernon 1997); Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex.1998). The act, however, imposes four limitations on that discretion. See Bocquet, 972 S.W.2d at 21. The attorney’s fees must be (1) reasonable, (2) necessary, (3) equitable, and (4) just. See id. Whether the attorney’s fees are reasonable and necessary are fact questions. See id. Whether the attorney’s fees are equitable and just are matters of law, which come within the trial court’s discretion. See id. The court may conclude it is not equitable or just to award reasonable and necessary attorney’s fees. See id.

Stephenson v. LeBoeuf, 16 S.W.3d 829, 843 (TexApp.—Houston [14th Dist.] 2000).

We do not find that the trial court abused its discretion in rendering a judgment for the award of attorney fees in the amount of $150,000. Marathon’s issue on its cross-appeal is overruled.

CONCLUSION

Based upon our holding, we need not reach Utley’s third issue regarding laches. The trial court’s judgment is affirmed.