Margaret Hunt HILL, Individually, Margaret Hunt Hill, Executrix (of the Estate of Al G. Hill, Deceased), Margaret Hunt Hill, Trustee (of the Margaret Hunt Hill Marital Trust), Chester J. Donnally, Jr., Trustee (of the Margaret Hunt Hill-Albert G. Hill, III, Trust, Heather Victoria Hill Trust, Elisa Margaret Hill Trust, Michael Busch Wisenbaker, Jr. Trust, Wesley Hill Wisenbaker Trust, Cody McArthur Wilert Trust and the Margretta Hill Wilkert Trust), Lyda Hill, U.S. Financial Corp., Seven Falls Co., Stuart Hunt, Sherman Hunt, Hara Hunt, Hilre Hunt, and The Kickham Group, Inc., Appellants, v. HERITAGE RESOURCES, INC., Wise Oil Ventures, Crittendon Acquisition Co., Michael B. Wisenbaker and The Chase Avenue Corp., and Van Oliver, As Trustee for Certain Trade Creditors of Heritage Resources, Inc., Appellees, 964 S.W.2d 89

OPINION CHEW, Justice. This is yet another oü and gas ease originating from the attempted removal of the Operator of a Joint Operating Agreement. In this case, the Operator and its affiliates filed suit against a confederated group of the largest Non-Operators alleging multiple tort and breach of contract claims. The Non-Operators responded with counterclaims for breach of contract by the Operator and in-junctive relief to remove the Operator.

The ease was tried to a Winkler County jury, and the Operator won on all issues and was awarded a judgment of over $83 million dollars in damages and prejudgment interest and approximately $21 million dollars in attorneys’ fees. In this appeal, the Non-Operators have challenged the jury’s findings on all issues and the Operator has cross-appealed on the issues of prejudgment interest and attorney’s fees. I.

Summary of the Facts A. The Parties. The Operator and its affiliates, plaintiffs below and Appellees here, are Heritage Resources, Inc., Wise Oil Ventures, Michael B. Wisenbaker, Chase Avenue Corporation, and Crittendon Acquisition Company. They are also joined by Van Oliver, as trustee for trade creditors of Heritage Resources, Inc., an intervening party. Michael Wisenbaker is the principal of all the corporations except for Wise Oü Ventures, which is owned by his father. Wisenbaker, a self-described oilman, has been an independent oil and gas venturer since the early 1970s.

He was once married to the daughter of Mr. A.G. Hill, Sr. and Mrs. Margaret Hunt Hill. The Appellees are hereafter referred to as “Heritage.” The Non-Operators, defendants below and Hunt/Hill here, principally consist of two related families. The first family was headed by A.G. Hill, Sr., a prominent oü and gas businessman, who died shortly after this litigation began. He was survived by his wife, Margaret Hunt Hill, who was named a defendant, individually and as Executrix and Trustee of her husband’s estate. Also named in the suit were the trusts of the Hills’ seven grandchüdren and their daughter, Lyda Hül.

They comprise, together with two closely held famüy corporations, Seven FaUs Company and U.S. Financial Corporation, what wül be referred to as the “Hül Group.” The other famüy includes the brothers, Sherman and Stuart Hunt, and their closely held corporation, the Kiekham Group, Inc., and two Hunt daughters, Hara and Hilre. They are coUectively referred to as the “Hunt Group.” The AppeUants as a whole wül be referred to as “HunVHiU.” B. The Dispute. In the early 1980s, Heritage acquired oü and gas leases in several sections of the Crittendon Field in Winkler County, Texas.

Heritage sold substantial, partial interests in these leases to A.G. Hill, Tribal Drilling (a Hunt family partnership), and the Hunt brothers individually. In November 1984, Heritage, as the Operator, entered into a Joint Operating Agreement (“22 J.O.A”) for

Section 22 of the Crittendon Field with Tribal Drilling Company and A.G. Hill and a number of other smaller working interest owners, using A.A.P.L. Form 610-1982 Model Form Operating Agreement. The contract area defined by Exhibit “A” of the 22 J.O.A. was for all of

Section 22 “[t]o a depth of 20,000’ or to a depth sufficient to thoroughly test the Fusselman formation, whichever is the lesser depth.” From our review of the 14,000 plus page record, we have distilled the facts of the case to the following narrative chronology beginning in 1985: 1985 October 28 A Joint Operating Agreement for the adjacent

Section 21 was entered into by essentially the same parties as the 22 J.O.A. 1986 August Heritage circulated an Authorization for Expenditures “AFE,” which proposed the 22-2 well. The AFE requested consent for drilling a new well with an objective depth limitation of the lesser of 22,000 feet or depth sufficient to test the Ellenburger formation (a geological stratum located in the Crittendon Field at an approximate depth of 21,500 to 22,000 feet below the surface and approximately 1000 feet thick). Heritage and all the Non-Operators, except Hunt/Hill, consented to the AFE.

For their part, Hunt/Hill agree to a second AFE which provided for a depth limitation of the lesser of 20,000 feet or depth necessary to test the Fusselman formation (a geological stratum located in the Crittendon Field at a depth of approximately 19,800 feet below the surface and approximately 800 feet thick). November 2 The 22-2 well was spudded.

November 18 Heritage and the two Hunt brothers entered into a Letter Agreement for 22-2 well and “subsequent” wells which authorizes deeper drilling, in stages, of the 22-2 well beyond 20,000 feet, with the Hunts’ prior consent. 1987 April 29 Tribal Drilling Company, Sherman Hunt, Stuart Hunt, and other members of the Hunt Group entered into a letter of agreement stipulating their proportionate shares of the drilling, testing, and completing costs attributable to the proposed 22-2 well and any subsequent wells in

Section 22. The letter acknowledged that Sherman and Stuart Hunt agreed to pay 37.5 percent of all costs attributable to the 22-2 well and 18.75 percent of all costs attributable to any subsequent wells drilled in

Section 22 pursuant to their letter of agreement with Heritage dated November 18,1986. May As drilling on the 22-2 well neared 19,000 feet, the operations became more tenuous. Hunt/Hill requested that the 22-2 well’s drilling cease and that the well be put into production, but Heritage continued the drilling. May 10 Heritage and Oxford Oil and Gas, Inc. “Oxford” entered into a letter of agreement whereby Oxford agreed to pay 64.5 percent of the drilling costs of the 22-3 well in exchange for an assignment of a 33.333334 percent working interest in the 22-3 well.

Oxford had the option to quit paying at any time and to receive a proportionately reduced interest once the well was completed. The agreement was expressly subject to the terms of the 22 J.O.A. (This document was dated May 10, 1987. There was some testimony, however, that the letter of agreement was not actually executed until September 1987). May 19 The 22-2 well blew out, but drilling operations were restored within several days.

A meeting of interest owners was held and the Hills and Hunts orally agreed to participate in a subsequent well, the 22-3 well, provided that the drilling on the 22-2 well stopped and it was put into production. May 22 The 22-2 well reached the Silurian formation (a geological stratum located in the Crittendon Field at an approximate depth of 18,900 to 19,300 feet below the surface and approximately 300 feet thick). June 20 The 22-2 well was completed at a depth of 19,062 feet below the surface and placed in production. Production pressure tests indicated a potential Texas record for gas reserves.

June 30 Heritage issued an AFE proposal for the new or substitute well — the 22-3. The AFE was for a new location and a depth of 22,000 feet or a depth sufficient to test the Elienburger formation, whichever was less. Hills and Hunts did not respond to the AFE. The Hunts began an analysis of their investment in the Crittendon Field and began negotiations with Lyeo Energy Corp. to sell their entire interest in the Crittendon Field. September 25 The Hunt Brothers secretly recorded a conversation with Michael Wisenbaker.

The Hunts told Wisenbaker that: (1) they were not contemplating the sale of their interests in the Critten-don Field; (2) they wanted a Joint Operating Committee to oversee Crittendon Operations with J.R. Latimer as Operator for the committee; (3) they wanted to stop all drilling activities in

Section 22; and (4) they had the requisite votes to remove Heritage as Operator and would do so unless Wisenbaker agreed with the Hunts. They were informed that Heritage was in negotiations with Enserch Gas Company and Lone Star Gas Company “Enserch/Lone Star” for prepayment gas contracts, and that Heritage was going forward with the 22-3 well and would not resign as Operator. September 25 Heritage sent the working interest owners an Elienburger AFE for the proposed 22-3 well. The AFE proposed a total depth of 22,000’ or to a depth sufficient to test the Elienburger formation whichever was shallower.

September 27 Tribal Drilling notified Heritage that it is opposed to the 22-3 well. September 28 The Hunts notified Heritage that a “vote” of the Non-Operators had been taken, and that a majority voted to remove Heritage for “failure and/or refusal to carry out its duties as Operator” of Sections 21, 22, and 23, but that there was not a majority voting for removal with respect to the other two wells. The letter stated that Tribal Drilling would take over operations and that Heritage should only perform “routine and necessary production, operating, and maintenance operations” until Tribal Drilling took over.

Wisenbaker telephoned Sherman Hunt and told him that Heritage will not resign as the Operator. September 29 Heritage informed the Hunt Brothers by letter that Heritage properly carried out its duties as Operator and that it would not resign. October 1 J.R. Latimer reported large gas reservoir in the Elienburger formation. October 5 The Hunt brothers sent a letter to Heritage requesting that no further operations be conducted until they sold their interests. October 14 Heritage distributed a second AFE, an Elienburger AFE for the 22-3 well, to the Hunts, Hills, and to all the other

Section 22 working interest owners. October 26 An Operator’s meeting was held to discuss the 22-3 well. Heritage confirmed that the proposed 22-3 well’s formation objective was the Elienburger. The Hunts objected to the drilling of the 22-3 well on the basis that Heritage was “selling out” and the working interest owners would not know “who they are going to be in bed with.” November 10 Hill signed an Elienburger AFE for the 22-3 well, conditioned upon: (1) the 22 J.O.A be amended to 22,000 feet;

(2) Hill retain an option of waiting until the well reached the Wood-ford Shale before deciding to go “consent” to the Elienburger; (3) costs be billed in accordance with a revised ownership schedule; and (4) all working interest owners received title opinion in time to review prior to spudding the 22-3 well. Gregg Ewing of A.G. Hill Oil Producer sent a letter to Heritage. The letter stated that pursuant to the October 26, 1987 meeting, A.G. Hill reviewed the AFE dated September 25, 1987, for the 22-3 well and determined that the proposed 22-3 well is outside the contract area of the

Section 22 J.O.A. Ewing advised Heritage that the J.O.A. must be amended to cover the 22-3 well and that A.G. Hill’s execution of the AFE was subject to Heritage’s agreement to amend the

Section 22 J.O.A November 23 Heritage furnished the Hunts with an executed depth-limited assignment. November 30 The Hunts signed a sale agreement with Lyco for the sale of Tribal Drilling’s interest in the Crittendon Fields for $20 million and part of future production. November 25 The Hunts then directed their attorneys to contact Heritage and advise it that since the contract area for the 22 J.O.A. was 20,000 feet, or a depth sufficient to test the Fusselman, the objective depth of the proposed 22-3 well was outside the contract area.

Attorneys for the Hunts sent Heritage a letter stating: (1) the 22-3 well is a proposed operation outside the “contract area” of the J.O.A.; (2) the J.O.A. does not govern operations outside the “contract area;” (3) the Hunts demand a full and complete accounting for all costs and revenues attributable to the 22-3 well;

(4) Heritage and the Hunts are tenants-in-eommon as to the 22-3 well; and (5) if it is ever determined that the 22-3 well is governed by the J.O.A. (i.e. within the “contract area”), the Hunts will elect to be either “consent” or “non-consent” at that time. December The Hunts then hired Newton Ballou to audit Heritage’s books and operations from 1985 through 1987. The auditor concluded that Heritage was in good to excellent condition and that out of $4 million in expenses, only $8,000 had been improperly coded.

December 1 Heritage sent a third AFE for the 22-3 well with an objective depth of 20,000 feet, or a depth sufficient to test the Fusselman formation, whichever was the lesser depth. December 2 Sherman Hunt and Virgil St. Clair, Exploration and Development Manager for A.G. Hill, met to discuss how the Hills could help in stopping the drilling of the 22-3 well. December 8 Hunts’ lawyer sent a letter to Heritage demanding an assignment of interest from Heritage under all of

Section 22 from the surface down to 19,164 feet below the surface. The letter further stated that the Hunts rejected the proposed assignment of interest that Heritage delivered on November 23, 1987. December 9 Mike Wisenbaker met with A.G. Hill, Jr. at the latter’s offices. Hill advised Wisenbaker that if he attempted to drill the 22-3 well, that Hunt/Hill would claim that Heritage was a bad faith trespasser and seize all gas production should the well be successful. Mike Wisenbaker alleged that Hill warned that Heritage would be “squashed ... like a bug” if he did not accept a new Operator.

December 10 Virgil St. Clair sent Heritage a letter on behalf of the Hills stating that they had “discovered that Heritage does not have a working interest” in

Section 22, which is a deemed resignation of operatorship under the terms of the 22 J.O.A. The letter further stated that Hill was nominating Tribal Drilling to assume operatorship and they would poll the other working-interest owners. The letter was a collaborative effort between the Hunts and Hills. December 15 Virgil St. Clair, on behalf of A.G. Hill, sent a letter to Heritage stating that Tribal Drilling received a majority of the working interest vote to operate the 22-2 well.

December 16 Anadarko Petroleum Corporation’s memo indicated that Hunt/Hill advised Anadarko Petroleum Corporation that Heritage did not have an interest in the Crittendon Field. The memo referenced a letter from A.G. Hill that stated it was unnecessary for Anadarko to respond to the 22-3 well AFE because the 22-3 well was outside the

Section 22 J.O.A’s parameters and Heritage “has no revenue interest, which is interpreted to read that it has no economic interest ... therefore, no interest” [emphasis added] in

Section 22. December 17 Virgil St. Clair, on behalf of A.G. Hill sent Heritage a reply to Heritage’s December 17 letter stating that although Heritage Resources, Inc. was record title owner, a Supplemental Division Order Title Opinion showed that Heritage Resources, Inc. did not have actual ownership. December 18 Hunt/Hill published a letter, on behalf of Tribal Drilling and all working interest owners claiming that Heritage was a bad faith trespasser on

Section 22. Tribal Drilling filed suit against Heritage in state court in Dallas, County. Tribal Drilling sought a declaratory judgment that Heritage had no interest in the field and a temporary restraining order to cease Heritage’s operations and turn them over to Tribal Drilling. Three hours later Heritage filed this instant suit in Winkler County alleging: (1) breach of contract; (2) slander of title; (3) cloud on title; (4) tortious interference with contract; (5) tortious interference with business relations; and (6) intentional/negligent infliction of emotional distress. December 18 Wisenbaker and Wisenbaker Production Company transferred their interests in

Section 22 to Heritage. December 23 Hunt lawyers sent a letter to Heritage lodging objections to 22-3 well. December 28 Heritage began drilling the 22-3 well. 1988 January 29 Hunt lawyers sent a letter to Heritage that they had opinion that the 22-2 well had been drilled to depth sufficient to test the Fusselman formation. The letter demanded that Heritage assign all deep rights under the letter agreement to the Hunt Group. March 21 Heritage notified the Non-Operators by letter that it was going to market the non-consent interests to the 22-3 well.

Immediately, the Non-Operators protest the sale of the non-consent interests. Attorneys for A.G. Hill, U.S. Financial, and Lydia Hill sent a letter to all working interest owners advising of the Dallas litigation seeking to obtain a declaratory judgment that Heritage had been removed as Operator and detailing the alleged improprieties by Heritage in continuing operations to drill the 22-3 well.

The letter further stated the consent or non-consent requirements of the 22 J.O.A. were not applicable because of Heritage’s status of title, and opined that Heritage’s actions in drilling the 22-3 well put Heritage in either a coten-ancy or bad faith trespass. April 8 Heritage sent a letter to Jack Bes-trom and Jerry Anderson notifying them that Best Energy Corporation, Insured Energy Production, Inc., and Oxford owed Heritage $1,072,211.05 as their proportionate share of the drilling operations for the 22-3 well. More than $200,000 of this amount was over 90 days past due.

Oxford’s share of the total amount due was $702,390. Heritage suspended revenue to all three companies until the balance due was paid. May 17 Heritage filed a second suit in Wink-ler County seeking damages and declarations that it was the rightful Operator.

Heritage sent a letter to the “consenting” working interest owners regarding the “Non-Consent Interests.” Heritage takes the position that those parties who have failed to respond to Heritage’s proposal to drill the 22-3 well, most notably the Hunt and Hill Groups, are now “Non-Consent Interests” and that Heritage has the right under the J.O.A. to market these “Non-Consent Interests.” Heritage asserted that these interests were “Non-Consent” since March 20, 1988. May 26 Heritage and Best Energy Corporation (Jack Bestrom) entered into a contract for the sale and purchase of a portion of the non-consent interests.

Best Energy Corporation contracted to purchase 28 percent of the working interest to the 22-3 well. The estimated drilling costs attributable to this working interest were $2,000,000. The sale was made subject to the successful removal of the cloud on Best’s acquired title. The cloud was the claim by Hunt/Hill that there were no non-consent interests to market. August 25 Oxford made its last payment of costs for the 22-3 well in the first week of August.

At approximately this time, Oxford decided that it would no longer pay for any of the drilling costs of the 22-3 well that are attributable to the non-consent interests that were marketed by Heritage. Oxford also ceased any attempts to sell a portion of the non-consent interests. August Heritage informed Jerry Anderson, president of Oxford, and Oxford that it believed Oxford’s conduct was fraudulent. Heritage informed Anderson that Heritage would have no further business involvements with Oxford. November 2 J.D.

Oehsner, the District Manager of the Western Division of the Gas Purchases Department of Lone Star Gas Co., sent a letter , to the president and vice-president of Lone Star Gas Co. seeking approval for revisions to the proposed prepayment gas purchase contracts between Enserch/Lone Star and Heritage. December 6 J.D. Oehsner sent Heritage a letter confirming the status of ongoing negotiations between Heritage and En-serch/Lone Star. Enserch/Lone Star forwarded revised prepayment gas purchase contracts to Heritage’s New York counsel for review.

Enserch Gas Co. also sent Heritage’s counsel proposed loan agreements between Wise Oil Ventures and Enserch Gas Co. December 7 Oehsner sent the president of Lone Star Gas Co. a memo stating that Heritage hopes to be able to sign the prepayment gas purchase agreements within two to four working days. 1989 January 31 Heritage and Sun Exploration and Production “Sun” began to negotiate a contract for the sale and purchase of all or a portion of Heritage’s interests in the Crittendon Field. March 9 A verbal commitment was made by Sun to purchase Heritage’s interests.

The 22-2 well began coning or producing water in large quantities; gas production was significantly reduced. March 13 Heritage informs Sun that the 22-2 well began to produce significant amounts of water. Sun withdrew its offer to purchase Heritage’s interests. July 14 Heritage sent a letter to the Hunt brothers stating that the Hunts failed to earn any interests in

Section 22. Heritage stated that the Hunts were required to pay 37.5 percent of all costs for the 22-2 well and 18.75 percent of all costs on subsequent wells in

Section 22. Heritage alleged that the Hunts failure to pay 18.75 percent of the costs for the 22-3 well caused the Hunt’s purported interests in

Section 22 to revert to Heritage. Heritage offered to reinstate the Hunts’ interests if the Hunts tendered payment for 18.76 percent of the costs associated with the 22-3 well. August 4 Heritage filed Plaintiffs First Supplemental Original Petition seeking recovery of the 22-2 well revenues previously paid to the Hunts on the grounds that the Hunts failed to meet the required conditions to earn the 3/16ths interest in

Section 22 under the terms of the November 1986 letter of agreement. December 20 Dan Ryser, executive vice-president of Enron Gasbank “Enron,” sent Heritage a Letter of Intent. ' The letter expressed the parties’ intent to enter into good faith negotiations for Enron’s purchase of interests from the Heritage group. Enron and Heritage expressed an intent to close negotiations and enter into an agreement by January 15, 1990. 1990 January 24 Steve Wisenbaker notified Bank One that Enron was unable to complete the transaction with Heritage.

After six months of negotiations, the parties scheduled a closing date for the purchase of Heritage’s interests. However, prior to the closing date, the president of Enron was terminated.

Enron notified Heritage that it would be unable to proceed with the closing schedule. 1992 May 1 Heritage filed its First Amended Petition alleging that HunVHill: (1) breached their obligations under the J.O.A. by both refusing to participate in the 22-3 well and refusing to go “non-consent;” (2) wrongfully received production payments from the 22-2 well that were contingent upon participation in the 22-3 well; (3) conspired to wrongfully remove Heritage as Operator of Sections 21, 22, and 23; (4) breached their obligations under the J.O.A by attempting to wrongfully remove Heritage as Operator; (5) willfully and maliciously violated a court order by interfering with Heritage’s ability to continue as Operator; (6) tortiously interfered with the business relations of Heritage and third parties as Heritage was attempting to enter gas sales agreements and negotiating for the sale of its interests in the Crittendon Field; (7) breached their duty under the J.O.A., or alternatively tortiously interfered with contracts or business relations between Heritage, the consenting working interest owners, and third parties by refusing to pay their share of the drilling costs of the 22-3 well and interfering with Heritage’s right to sell the non-consent interests; (8) slandered Heritage’s title to interests in the Crit-tendon Field; and (9) failed to earn any additional interests in

Section 22. II. Introduction to the Discussion HunVHill’s futile attempts to remove Heritage as the Operator of the 22 J.O.A. and their opposition to well operations subsequent to the 22-2 well are the evident origins of this marathon litigation. It also appears clear that the Hunts were motivated by their desire to sell their interests in the Crittendon Field and that the marketability of those interests were restricted by Heritage’s position as the Operator. The Hills’ motivation is less clear, though it seems more focused on their concerns with the conduct of field operations by Heritage.

Nonetheless, the essential facts of this case are largely undisputed and relatively uncomplicated. These facts, however, are enveloped within the mass and maze of a record typical of oil and gas cases, and groaning further from the Byzantine nature of joint operating agreements. Not surprisingly, the author has spent many months wandering in strange and mostly wrong valleys searching for the answers to the imponderables presented in this case.

Basically, this is a case where the Joint Operating Agreement Operator has alleged commercial and tort causes of action arising as a consequence of the actions of Non-Operators in attempting to remove him as the Operator and to prevent subsequent well operations. These causes of action include tortious interference, slander of title, and fraud. On the other side, the Hunt/Hill’s claim that Heritage breached the Joint Operating Agreement (“J.O.A”) and was not legally qualified to serve as the Operator under the J.O.A The jury generally found for Heritage and rejected all of HunVHill’s claims.

Heritage, recovered under three theories of tort liability: (1) tortious interference with contract and business relationship; (2) slander of title; and (3) fraud. Each of these causes of action were premised upon essentially six distinct actions alleged and proven.

These were: • the negotiations and agreement between Hunt and Lyco Energy regarding the sale of Hunt’s interest in the Crittendon Field, which included contingencies that there be no further drilling operations after the 22-2 well and that Heritage be replaced as the Operator by Lyco Energy; • the purported September 28, 1987 vote of the Non-Operators to remove Heritage as the Operator and replace it with Tribal Drilling; • the December 10, 1987 vote of the Non-Operators conducted by HunVHill to remove Heritage as the Operator on the basis that Heritage lacked a proper ownership interest in the 22 J.O.A; and publication of Hill’s letter of December 1987 stating that Heritage had no legal interest in the 22 J.O.A.; • Hill’s attorney’s letter of December 18, 1987, which stated that Heritage was at best a co-tenant in the 22-3 well or worst a “bad faith trespasser;” • the declaratory litigation initiated by Hunt/Hill against Heritage in Dallas County shortly before the instant action was filed by Heritage; and • the Hunts’ oral agreement with Heritage to participate in the 22-3 well in exchange for Heritage stopping and completing the 22-2 well short of the objective depth and formation.

The jury concluded that as consequences of these actions: • Heritage’s title in the 21 and 22 J.O.A.S was slandered; • Heritage’s agreements to sell to third parties the non-consent interests which Heritage carried in the 22-3 well were tortiously interfered with; • the gas purchase agreement that Heritage had with Oxford was tortiously interfered with; • the agreement Heritage had with Sun for the sale of Heritage’s interest in the Crittendon Field was tortiously interfered with; • Heritage’s prospective business relation- ■ ship with Ensereh/Lone Star and Enron oil companies was tortiously interfered with; and • the Hunts’ promise and failure to pay their share of costs of the 22-3 well constituted a fraud against Heritage.

Hunt/Hill raise sixty-three cardinal points of error, most containing two to six sub-points.

We have chosen to consider together those points that are the same, similar, or related and are divided into the following categories: • that the claims sound in contract not tort; • that no non-consent interests were created; • that some or all claims are barred by the statute of limitations; • that the evidence was legally and factually insufficient; • that Hunt/HiU’s conduct was justified; • that HunVHill’s conduct constituted fraud; • that Hunt/Hill breached an oral contract to develop the 22-3 well; • the remainder of points and cross-points of error. III.

Contract or Tort? ' Points of Error la, 5a, 9a, 13a, 17a, 23a, 27a, 31a, 35a, 39a, and 53a. We consider first Hunt/Hill’s complaints that Heritage is barred as a matter of law from any tort recovery in this suit because all of the latter’s claims sound only in contract and the jury made no findings of breach of contract. Hunt/Hill also claim that Heritage did not submit breach of contract to the jury; however, we immediately disagree with that claim. In response to jury Question 8, the jury found that the 22-3 well was covered by the 22 J.O.A.

Further, in response to jury Question 11, the jury found that Hunt/Hill’s failure to comply with the 22 J.O.A. was not excused. Thus, we find that jury implicitly found that Hunt/Hill breached the 22 J.O.A. This finding does not, however, extinguish Hunt/Hill’s complaint. Hunt/Hill has broadly argued that Heritage’s claims only sound in contract and not in tort. On the other side of this looking glass, Heritage counters just as broadly that this is simply a tort case.

Justice Larsen has noted that the “law of ‘contorts’ is a muddy area, devoid of bright line rules or easy answers as to what conduct constitutes a tort, and what a breach of contract. The acts of a party may breach duties in tort or contract alone, or simultaneously in both.” Airborne Freight Corp., Inc. v. C.R. Lee Enterprises, Inc., 847 S.W.2d 289, 293 (Tex.App.—El Paso 1992, writ denied).

The practical importance of “contorts” or business torts is the fact that one cannot recover exemplary damages for the mere breach of contract, but if the claim is accompanied by an independent tort then exemplary damages can be recovered. Under such circumstances, in addition to the exemplary damages awardable because of the tort claim, attorney’s fees are recoverable because of the breach of contract claim. A.

Standard of Review The legal issue presented by these points of error, the theory of recovery or defense, involve several rulings by the trial court: overruling objections to questions in the jury charge; and motions for a directed verdict; to disregard jury findings; for judgment n.o.v.; and for new trial. These are all predicated upon a question of law reviewable by this Court de novo. Phillips Pipeline Co. v. Richardson, 680 S.W.2d 43, 48 (Tex.App.—El Paso 1984, no writ)(jury questions); State Nat’l Bank of El Paso v. Farah Mfg.

Co., Inc., 678 S.W.2d 661, 669 (Tex.App.—El Paso 1984, writ dism’d by agr.)(directed verdicts); Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990)(judgment n.o.v.); Kraus v. Alamo Nat’l Bank of San Antonio, 686 S.W.2d 202, 208 (Tex.Civ.App.—Waco 1979), aff'd and cited with approval, 616 S.W.2d 908, 910 (Tex.1981)(disregarding jury findings). Ordinarily, we review the record in the light most favorable to the findings, considering only the evidence and reasonable inferences that support the finding and rejecting all evidence and inferences contrary to the finding. Schaefer v. Texas Employers’ Ins.

Ass’n, 612 S.W.2d 199, 201 (Tex.1980); Best, 786 S.W.2d at 671. Here, however, the issue is presented and considered as a pure question of law reserving the evidentiary factors necessary to sustain or dismiss the legal theory under the sufficiency evidence points which are considered below. Thus presented, the scope of our review is truly plenary and includes the entire non-evidentiary portion of the record. We consider therefore the causes of actions pleaded and the contract to determine as a question of law whether Heritage’s claim sounds only in contract and not tort. B.

Heritage’s Business Tort Causes of Action (“Contorts”). 1. Tortious Interference with a Contract or Prospective Business Relationship. Texas law protects existing and prospective contracts from interference. Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 665 (Tex.1990). The principal difference between the two involves the requirement of a contract as opposed to a potential for a contract and the question of justification or defense which is borne by the defendant in a tortious interference with contract case.

To recover for tortious interference with an existing contract, a plaintiff must prove: (1) the existence of a contract subject to interference; (2) a willful and intentional act of interference; (3) that the act was the proximate cause of the plaintiffs damage; and (4) that actual damage or loss occurred. Holloway v. Skinner, 898 S.W.2d 793, 796-96 (Tex.1995); Juliette Fowler Homes, 793 S.W.2d at 664; Armendariz v. Mora, 553 S.W.2d 400, 404 (Tex.Civ.App.—El Paso 1977, writ ref'd n.r.e.).

To establish a cause of action for a prospective business relationship, the plaintiff must show: (1) the reasonable probability that a contractual relationship would have been entered; (2) an intentional, malicious intervention with the formation of that relationship; (3) without privilege or justification; and (4) resulting in actual damage or loss. Gonzalez v. San Jacinto Methodist Hosp., 905 S.W.2d 416, 421 (Tex.App.—El Paso 1995), rev’d on other grounds sub nom., Calvillo v. Gonzalez, 922 S.W.2d 928 (Tex.1996).

It is not necessary to prove that the contract would have certainly been made but for the interference; it must be reasonably probable, considering all of the facts and circumstances attendant to the transaction. Exxon Corp. v. Allsup, 808 S.W.2d 648, 659 (Tex.App.—Corpus Christi 1991, writ denied). More than mere negotiations must have taken place. Caller-Times Publ’g Co., Inc. v. Triad Communications, Inc., 855 S.W.2d 18, 21 (Tex.App.—Corpus Christi 1993, no writ); Grace v. Zimmerman, 853 S.W.2d 92, 95 (Tex.App.—Houston [14th Dist.] 1993, no writ). 2. Slander of Title.

Slander of title is defined as a false and malicious statement made in disparagement of a person’s title to property which causes him special damage. Hauglum v. Durst, 769 S.W.2d 646, 653 (Tex.App.—Corpus Christi 1989, no writ); Sadler v. Duvall, 815 S.W.2d 285, 293 (Tex.App.—Texarkana 1991, writ denied). The elements are: (1) the uttering and publishing of the disparaging words; (2) that they were false; (3) that they were malicious; (4) that the plaintiff sustained special damages thereby; and (5) that the plaintiff possessed an estate or interest in the property disparaged. American Nat’l Bank & Trust Co. v.

First Wisconsin Mortg. Trust, 577 S.W.2d 312, 316 (Tex.Civ.App.—Beaumont 1979, writ ref'd n.r.e.). 3. Fraud. To prove fraud, a plaintiff must establish that (1) a material misrepresentation was made, (2) the speaker knew it was false when made or made it recklessly without any knowledge of its truth, (3) the representation was made with the intent that it should be acted upon by the party, and (4) the party acted in reliance upon the representation to its damage. DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 688-89 (Tex.1990), cert. denied, 498 U.S. 1048, 111 S.Ct. 755, 112 L.Ed.2d 775 (1991); Trenholm v.

Ratcliff, 646 S.W.2d 927, 930 (Tex.1983); Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 185 (Tex.1977). See also Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434-35 (Tex.1986); Stanfield v. O’Boyle, 462 S.W.2d 270, 272 (Tex.1971); Schindler v. Austwell Farmers Coop., 829 S.W.2d 283, 286 (Tex.App.—Corpus Christi 1992), aff'd as modified on other grounds, 841 S.W.2d 853 (Tex.1992). C. The Contract — The Joint Operating Agreement. This ease features the 1982 version of the operating agreement form promulgated by the American Association of Petroleum Landmen (“A.A.P.L.

Form 610-Model Form Operating Agreement 1982”). The basic and stated purpose of these operating agreements is for the exploration and development of designated oil and gas within the prescribed geographical area described in Exhibit “A” to the J.O.A. A single party is appointed “operator” who is responsible for the management and control of drilling, development, and production activities. The parties agree to share the costs and liabilities, to own equipment, and to share in production in proportion to their respective percentage of ownership and burdens, which is also set out in Exhibit “A” of the J.O.A.

The drilling of an initial well on the contract area is the only operation mandated in which all the parties must participate. After the initial well, any party may propose subsequent drilling operations, but such operations must be conducted by mutual consent of all the parties or pursuant to the consent/non-consent provisions. A.A.P.L. Form 610, 1982, Art. VI, B. Notice of a proposal triggers the consent/non-consent provisions for subsequent drilling operations.

Those parties who decline to participate are “non-consenting parties.” Those who agree to participate are consenting and bear all costs and risks of that operation.

A consenting party may opt to limit its participation to its original working interest or to “carry its proportionate part of Non-Consenting Parties’ interests .... ” When the operations begin, the non-consenting parties are deemed to have relinquished all interest in the well, operating rights, and production until the carrying parties are reimbursed for 100 percent of what would have been the non-consenting party’s share of the operating costs and surface equipment and a substantial risk penalty, a multiple (500 percent in this case) of most other costs carried. A.A.P.L. Form 610, 1982, Art. VI, B(2).

Typically, any party desiring to drill a subsequent well or to rework, deepen, or plug back a nonprodueing well is required to give written notice to each participant, specifying the operation proposed, the location, objective depth and formation, and the estimated cost. Upon receipt of the notice, the election to participate must be exercised within a specified period of time. The failure to respond is deemed a negative election. A.A.P.L. Form 610,1982, Art. VI, B(l). An election to participate applies to the full extent of a party’s interest.

However, a party may increase its participation by assuming responsibility for a non-consenting party’s interest. If less than all parties elect to participate, the proposing party must inform all the consenting parties of the total interest committed to the project. Each party that elects to participate may then further elect to limit its participation to its original interest or to carry its proportionate part of the non-consenting parties’ interests in addition to its original interest.

Despite a non-consenting party’s relinquishment of control and share in the subsequent operation, the non-consenting party remains a party in the overall venture and continues to have a substantial degree of control even over the project in which it is not participating. The non-consent party retains the right of access to all portions of the contract area. Most significant to this case, the non-consent party continues to have voting rights in the removal and appointment of the operator, which provides a forum for voicing complaints on the nature of operations for any well in the contract area.

Voting rights are undiluted by a non-consent position. D. Independent Causes of Action. HunVHill contends that Heritage’s claims are totally dependent upon the Joint Operating Agreements entered into by the parties for operations in the Crittendon Field. Focusing on the source of duty and the type of damages claimed and proven, Hunt/Hill argues that without the 22 J.O.A. and its attendant relationships, interests, and obligations, no tort obligations rise, and that all of Heritage’s claims sound only in contract. They cite Southwestern Bell Tel. Co. v.

DeLanney, 809 S.W.2d 493, 495 (Tex.1991), arguing that because the injuries claimed by Heritage are economic losses premised solely upon the subject of the 22 J.O.A., Heritage’s action sounds in contract alone. Id., quoting Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex.1986). The gist of this issue is really that many of the same operative facts that can give rise to a cause of action for breach of contract may also give rise to causes of action for business torts.

While the concept that contractual obligations arise from an agreement between the parties whereas a tort obligation is imposed by law separate from any contractual undertaking seems quite evident, application of the concept is not so clear cut. Compare Airborne Freight Corp., Inc., 847 S.W.2d at 295-96, with Beneficial Personnel Servs. of Texas, Inc. v. Rey, 927 S.W.2d 157, 167-68 (Tex.App.—El Paso 1996)(vacated pursuant to settlement without reference to the merits).

Minimally, any analysis must consider the source of the duty and the nature of the remedy sought to determine the independence of tort claims from their associated contract claims. See Formosa Plastics Corp. USA v. Presidio Eng’rs and Contractors, Inc., 41 Tex. Sup. Ct. J. 289, 291, 960 S.W.2d 41, 43 (Tex.1998). Most significant to this case, however, is that the Texas Supreme Court has clearly recognized the propriety of fraud and tortious interference with contract claims notwithstanding the fact that damages were only economic losses recoverable under a breach of contract claim.

Id. at 293, at 44 citing Crim Truck & Tractor Co. v. Navistar Int’l Transp. Corp., 823 S.W.2d 591, 597 (Tex.1992) and American Nat’l Petroleum Co. v. Transcon. Gas Pipe Line Corp., 798 S.W.2d 274, 278 (Tex.1990). E. Conclusion. Thus, the question before us simply comes down to whether Heritage’s tort claims are sufficiently independent from the breach of contract claims in the pleadings, in the proof, and in the damages questions submitted to the jury.

The tortious interference and slander of title claims relate to: • the non-consent interests which Heritage claims it derived from Hunt/Hill’s non-participation in the 22-3 well and which Heritage sought to sell to third parties; • a buy-in agreement that Heritage had with Oxford; • gas purchase agreements which Heritage sought with Enron and Enserch/Lone Star; and • a proposal by Sun to buy all of Heritage’s interest in the Crittendon Field.

The fraud cause of action depends on the allegation that: • the Hunts orally promised Heritage that the Hunts would pay for their share of the drilling of the 22-3 well, as well as substitute or subsequent well operations, in exchange for Heritage putting the 22-2 well into production. While it is clear that the right to remove an operator under a J.O.A., and participation or non-participation in a subsequent J.O.A. operation are undoubtedly contractual rights, it does not necessarily follow that a party’s actions regarding the J.O.A. contract can never rise to the level of a tort.

See American Nat’l Petroleum Co., 798 S.W.2d at 278 (breach of one’s own contract, while only giving rise to contract claims as regards to that contract, can also constitute claim in tort for tortious interference with the contract of a third party).

As noted above, the Texas Supreme Court recently reaffirmed, at least conceptually, that concept, holding that “tort damages are recoverable for a fraudulent inducement claim irrespective of whether the fraudulent representations are later subsumed in a contract or whether the plaintiff only suffers an economic loss related to the subject matter of the contract.” Formosa Plastics Corp. USA, 41 Tex.Sup.Ct.J. at 298, 960 S.W.2d at 44. Furthermore, we are not dealing with an ordinary contract.

Joint Operating Agreements, standardized forms developed over years by the industry to govern ventures in the development of oil and gas properties, are simply not everyday fixtures of life. They govern operations involving immense financial risk and reward; the parties to J.O.A. are experienced and sophisticated and generally have balanced bargaining positions. These are agreements which involve liabilities and obligations unique to the legal and technical peculiarities of the oil and gas industry.

Nevertheless, this case highlights that they are still basic structures with minimal safeguards and protections from the misconduct of a party. We conclude the pleadings and jury submissions sufficiently distinguish independent claims of breach of contract and tort causes of action. The specific facts forming the basis for breach of contract establish at least some degree of independence from the facts forming the basis for the tortious interference, slander of title, and fraud. The tort causes of action pled and proven by Heritage were independent of the 22 J.O.A.

Rather, the contracts or business relationships alleged by Heritage relate to the non-consent interests Heritage sought to sell to third parties, the gas purchase agreements, and Heritage’s attempt to sell its entire Critten-don interests which are clearly independent of the obligations and duties imposed under the 22 J.O.A. Consequently, we find that Heritage’s recovery in tort is not barred as a matter of law. Points of Error la, 5a, 9a, 13a, 17a, 28a, 27a, 31a, 35a, 39a and 53a are overruled. IV. Non-Consent Interests. Points of Error lb, c, 2a, 1, 22, 23b, c, d, e, f 21a, and 11.

We next consider whether there were non-consent interests. Heritage alleged that HunVHill were non-consenting parties to the drilling of the 22-3 well and that they tor-tiously prevented Heritage from marketing the non-consent interests of Hunt/Hill that Heritage carried in accordance with the 22 J.O.A. Hunt/Hill counter that there were no non-consent interests to be carried by Heritage because the 22 J.O.A. did not cover the 22-3 well. We find that the 22 J.O.A. did not cover the 22-3 well. A. Standard of Review.

None of the parties argue that the terms of their joint operating agreement are ambiguous; they simply disagree over the construction and

interpretations of its terms. A disagreement over the meaning of a contract does not render the provision ambiguous. Purvis Oil Corp. v. Hillin and MS Oil Properties, Inc., 890 S.W.2d 931, 935 (Tex.App.—El Paso 1994, no writ); First City Nat’l Bank of Midland v. Concord Oil Co., 808 S.W.2d 133, 136 (Tex.App.—El Paso 1991, no writ). When parties disagree over the meaning of an unambiguous contract, the court must determine the parties’ intent from the agreement itself, not from the parties’ present

interpretation. Purvis Oil Corp., 890 S.W.2d at 935; KMI Continental Offshore Prod. Co. v. ACF Petroleum Co., 746 S.W.2d 238, 241 (Tex.App.—Houston [1st Dist.] 1987, writ denied). Where a contract is unambiguous, it need only be enforced as a matter of law and as it is written. Coker v. Coker, 650 S.W.2d 391, 393-94 (Tex.1983); R & P Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 518-19 (Tex.1980).

As we discussed before, and as we will discuss several more times, Joint Operating Agreements are familiar, standardized legal documents developed by the Oil and gas industry to conduct the complex and risky business of drilling and producing oil and gas. Basic to the purpose of the J.O.A. is the identification of what oil and gas properties are subject to the J.O.A. and what the proportional obligations and interests are borne by the respective working interest owners in the development of those properties, both of which are detailed in Exhibit “A” to the J.O.A.

These are essential to a J.O.A. because participation in the first well is the only operation in which all the J.O.A. parties must participate, and thereafter, any J.O.A. party may propose subsequent drilling operations which must be conducted by mutual consent of all the parties or pursuant to the consent/non-consent provisions. AAP.L. Form 610,1982, Art. VI, B. Heritage claims that it properly proposed the development of the 22-3 well under the terms of the 22 J.O.A, and because Hunt/Hill elected not to participate in the 22-3 well operation, Heritage carried the 22-3 well non-consenting interests of Hunt/Hill.

In Question 8 of the trial court’s charge, the jury found that the 22-3 well was covered by the 22 J.O.A It is, however, clear from the record and undisputed that the 22-3 well was proposed, engineered, and drilled to a target depth of 22,000 feet or the EHenburger formation. Thus, the first problem, with the jury’s verdict is that the 22 J.O.A. on its face does not cover the 22-3 well. Exhibit “A” of the 22 J.O.A reads, in pertinent part: 1. LANDS SUBJECT TO THIS AGREEMENT: All of

Section 22, Block C-23, PSL Survey, Winkler County, Texas 2. RESTRICTIONS AS TO DEPTHS OR FORMATIONS: To a depth of 20,000’ or to a depth sufficient to thoroughly test the Fussel-man formation, whichever is the lesser depth. In the face of this contradiction, Heritage makes two alternative arguments. First, that whether or not the J.O.A covers a well is determined at the time the well is proposed and not after the well has already been drilled. Secondly, the J.O.A parties modified the depth restrictions of the 22 J.O.A to cover the deeper depths to which they actually drilled the 22-3 well.

We find their first argument that the actual depth or formation to which a well is drilled is immaterial so long as the depth and formation initially proposed were within the “contract area,” unpersuasive, either as a general proposition or as applied to this case. The argument is especially flawed as for drilling operations that go beyond or deeper than the limitations defined by the J.O.A It also trivializes the import of the defined contract area and subjects the non-operators to the whim of the operator. Cf. Hamilton v. Texas Oil & Gas Corp., 648 S.W.2d 316, 323-24 (Tex.App.—El Paso 1982, writ ref'd n.r.e.).

Conversely, it makes almost no sense to require or to allow an operator to drill deeper than is necessary to bring a well into proper production. In other words, the depth and formation expressed in the J.O.A define the outer or maximum boundaries covered by a J.O.A and not minimum mandatory objectives. We therefore reject Heritage’s first argument. It is axiomatic that a J.O.A contract and specifically the contract areas may be contractually amended, and Heritage’s alternative argument is that the 22 J.O.A was modified to authorize drilling the 22-3 well to the actual completion depth of 22,000 feet.

To conclude that there was a valid modification, the jury had to favorably determine two elements. The first is that the modification is based upon new consideration. Hovas v. O’Brien, 654 S.W.2d 801, 803 (Tex.App.—Houston [14th Dist.] 1983, writ ref'd n.r.e.); Barnhill v. Moore, 630 S.W.2d 817, 820 (Tex. App.—Corpus Christi 1982, no writ). The second is that there existed the same degree of mutuality and meeting of the minds as was present for the original contract. Mid Plains Reeves, Inc. v. Farmland Indus., Inc., 768 S.W.2d 318, 321 (Tex.App.—El Paso 1989, writ denied); Mandril v.

Kasishke, 620 S.W.2d 238, 244 (Tex.Civ.App.—Amarillo 1981, writ ref'd n.r.e.). One party alone cannot modify a contract after it has been entered into and all parties to the agreement must assent to the modification for the modification to be valid. Mandril, 620 S.W.2d at 244. The 22 J.O.A. was entered into by sixteen entities, besides Heritage. Accordingly, any modification of the contract would require the mutual assent of all the parties. It is clear from the record that the parties contemplated a modification of the contract area.

Indeed, the attempted modification of the 22 J.O.A. contract area did not begin with the 22-3 well, but rather with the 22-2 well. Consequently, we must consider two instances in order to decide if there was, as Heritage argues, a valid modification to the 22 J.O.A. to extend the contract area deeper: (1) the issuance and execution of AFEs on the 22-2 well; and (2) the issuance and execution of AFEs on the 22-3 well. 1. The 22-2 Well. The undisputed evidence shows that all the working interest owners, except the Hills and Tribal Drilling Company, signed an Ellenburger AFE for the 22-2 well.

This contemplated and authorized drilling beyond 20,000 feet and the shallower Fusselman formation. The undisputed evidence shows, however, that the Ellenburger AFE was accompanied by a cover letter from Heritage to the working interest owners that stated, that despite the language in the AFE, Heritage only intended to drill to a depth sufficient to test the Fusselman formation, or to 20,000 feet, whichever was less. Hunt/Hill objected and demanded a Fusselman AFE for the 22-2 well. Consequently, as a matter of law, a modification of the 22 J.O.A. could not have occurred via the 22-2 well Ellenburger AFE.

As evidenced by Heritage’s cover letter, there is legally no evidence of a meeting of the minds between Heritage and the other working interest owners. Moreover, there is no evidence of a clear intent on behalf of the parties to modify the J.O.A. Indeed, formal modification of the 22 J.O.A. was never expressly addressed or requested. Finally, because of the conflicting language of the accompanying cover letter, we do not find any intent by implication that the signing of the Ellenburger AFE by the working interest owners would modify the 22 J.O.A.

The Hunts and Tribal Drilling’s refusal to sign an Ellenburger AFE for the 22-2 well, and their demand for and execution of a Fusselman AFE clearly negates any finding of a modification of the 22 J.O.A. because of the 22-2 well operations. 2. The 22-3 Well. On May 19, 1987, Heritage encountered problems in the drilling of the 22-2 well. Heritage alleged that it halted drilling on the 22-2 well, which was well short of the target depth in exchange for Hunt/Hill’s oral promise to pay their share of the costs for a substitute well, the 22-3 well.

Both Heritage and Hunt/Hill understood that the 22-3 well was to be drilled to a depth of 22,000 feet, or a depth sufficient to test the Ellenburger formation. No part of that agreement was ever put into writing and no evidence was offered of the essential terms of the agreement. Once it had the oral agreement with Huni/Hill to stop drilling on the 22-2 well, Heritage polled the other interest owners to secure unanimous consent of all working interest owners to stop short the drilling operations on the 22-2 well. Heritage then issued three AFEs in series for the 22-3 well.

The first AFE issued on June 30,1987, proposed drilling to a depth of 22,000 feet. The second AFE issued on October 14, 1987, proposed a different location and a depth of 22,000 feet. The third AFE issued on December 1, 1987, proposed the same location as the June AFE but proposed drilling only to a depth of 20,000 feet. Heritage has not cited, and we have not found any evidence that any one of these AFEs was executed by all the working interest owners.

There is evidence that the Hills, in a letter to Heritage, conditionally agreed to the drilling of the 22-3 well to a depth of 22,000 feet upon the occurrence of several conditions, two of which included that Heritage formally amend the 22 J.O.A to cover the proposed drilling depth and that Heritage secure a title opinion on the drill site in accordance with the 22 J.O.A The evidence reflects that Heritage tried but failed to secure the other Non-Operators’ consent to amend the

Section 22 J.O.A. to eliminate the depth restrictions. We simply fail to see how Heritage can now hold Hunt/Hill liable under the unmodified contract. Centex Corp. v. Dalton, 840 S.W.2d 952, 956 (Tex.1992); Tubb v. Bartlett, 862 S.W.2d 740, 746 (Tex.App.—El Paso 1993, writ denied). Heritage has failed to present sufficient evidence of a meeting of the minds of all parties to the

Section 22 J.O.A sufficient to effect a modification. We find that as a matter of law, the

Section 22 J.O.A did not cover the 22-3 well. This finding requires that we sustain Points of Error 22 and 44. B. Claims Based on Non-Consent Sales. 1. Tortious Interference with a Contract/Prospective Business Relationship. Because the 22 J.O.A did not govern the 22-3 well, there was no obligation by any of the working interest owners to make a consent or non-consent election when the 22-3 well was proposed by Heritage. Consequently, there were no non-consent interests in the 22-3 well for Heritage to carry or be able to sell.

Nonetheless, the jury found that Heritage had both an agreement to sell the non-consent interest to the five different third parties and a reasonable probability of making such an agreement. These findings are unsupportable. The cause of action for tortious interference with a contract is qualified with the requirement that the contract be “subject to interference.” Juliette Fowler Homes Inc., 793 S.W.2d at 664. All contracts are not subject to interference. There must at least be a “valid” contract. Id.

Unsupported by any valuable consideration, i.e., the non-consent interests, these contracts were void and not simply unenforceable. Armendariz v. Mora, 553 S.W.2d 400, 404-05 (Tex.Civ.App.—El Paso 1977, writ ref'd n.r.e.). Similarly, an element of tortious interference with a prospective business relationship is that there is a reasonable probability of entering into a business relationship. Since Heritage had no non-consent interests to sell, there was “no interest with which [Hunt/Hill] could tortiously interfere.” Grace v. Zimmerman, 853 S.W.2d 92, 96 (Tex.App.—Houston [14th Dist.] 1993, no writ).

With nothing to sale, there could be no actual damages. We also note the general rule that an interfering party is justified in his or her interference if the interference is done in a bona fide exercise of his or her own rights and if he or she has an equal or superior right in the subject matter to that of the other party. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 939 (Tex.1991). Justified action includes the filing of a lawsuit, as long as it is done in good faith with the belief that there is a colorable claim. Texas Beef Cattle Co. v.

Green, 921 S.W.2d 203, 211 (Tex.1996); Tidal Western Oil Corp. v. Shackelford, 297 S.W. 279, 280-81 (Tex.Civ.App.—Fort Worth 1927, writ ref'd). The courts have also recognized the privilege that an interfering party can act to protect its own legitimate financial interest; the invalid selling of non-existing interests pursuant to a joint operating agreement is certainly such an adequate financial interest. Central Sav. and Loan Ass’n v. Stemmons Northwest Bank, 848 S.W.2d 232, 241 (Tex.App.—Dallas 1992, no writ). Such justification would apply to both causes of action — actual and prospective agreements.

We thus find that all claims of tortious interference with contract or with prospective business relationships regarding the non-consent interests Heritage claimed to be carrying must fail as a matter of law. Points of Errors lb, c, 2a, and 4 are sustained. 2. Slander of Title. Slander of title is a tort action with stringent pleading and proof requirements. The plaintiff must prove that the defendant made a false and malicious statement, disparaging property in which the plaintiff holds an interest, and causing special damages. Clark v. Lewis, 684 S.W.2d 161, 163 (Tex.App.— Corpus Christi 1984, no writ).

A plaintiff must also prove the loss of a specific sale in order to recover. A.H. Belo Corp. v. Sanders, 632 S.W.2d 145, 145-46 (Tex.1982). Since there were no non-consent interests for Heritage to carry or sell, Heritage could not possess any interest or estate which could be disparaged; Hunt/Hill’s publications or utterances complaining about Heritage’s attempts to sell or otherwise market those interests were not false; and finally, it is impossible for Heritage to prove the loss of a specific sale or any special damage.

All of Heritage’s claims for slander of title premised on the non-consent sales must fail as a matter of law. Heritage is, therefore, precluded from recovery on any theory involving non-consent interests in the transactions involving:

(1) Craig Sandahl;

(2) Jack Bestrom;

(3) Bruce Heafitz;

(4) Mobil Producing; and

(5) E.R. Duke. We sustain Points of Error 23b, c, d, e, f, and 24a. V. Statute of Limitations. Points of Error 3, 7, 11, 15, 19, 25, 29, 33, 37, and ⅛1. Hunt/Hill challenge the award of damages based on tortious interference with contract and prospective business relations and slander of title on the ground that all such claims were barred by the statutes of limitations. Actions based upon tortious interference with an existing contract, tortious interference with business relations, and slander of title are all controlled by a two-year statute of limitations.

Tex.Civ.PRAC. & Rem.Code Ann. § 16.003 (Vernon 1986); Arabian Shield Dev. Co. v. Hunt, 808 S.W.2d 577, 584 (Tex.App.—Dallas 1991, writ denied)(tortious interference with existing contract); Atomic Fuel Extraction Corp. v. Estate of Slick, 386 S.W.2d 180, 191 (Tex.Civ.App.—San Antonio 1964), writ ref'd n.r.e. per curiam, 403 S.W.2d 784 (Tex.1965)(tortious interference with existing contract); First Nat’l Bank of Eagle Pass v. Levine, 721 S.W.2d 287, 289 (Tex.1986)(tortious interference with business relations); Kidd v.

Hoggett, 331 S.W.2d 515, 520 (Tex.Civ.App.—San Antonio 1959, writ ref'd n.r.e.)(slander of title). For purposes of applying a statute of limitation to a tort, the cause of action accrues when facts come into existence which authorize a claimant to seek a judicial remedy or when the wrongful act effects an injury. Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 156 (Tex.1991); Brown v. KPMG Peat Marwick, 856 S.W.2d 742, 746 n. 4 (Tex.App.—El Paso 1993, writ denied). The determination of when a cause of action accrues is a question of law. Willis v. Maverick, 760 S.W.2d 642, 644 (Tex.1988).

A cause of action for tortious interference with an existing contract does not accrue until the contract is interfered with and harm caused to the plaintiff. Atkins v. Crosland, 417 S.W.2d 150, 153 (Tex.1967). Similarly, a cause of action for tortious interference with business relations does not accrue until existing negotiations, which are reasonably certain of resulting in a contract, are interfered with such that the negotiations terminate and harm to the plaintiff results. Likewise, a claim for slander of title does not accrue until there has been a loss of a specific sale. Ellis v.

Waldrop, 656 S.W.2d 902, 904-05 (Tex.1983); Shell Oil Co., Inc. v. Howth, 138 Tex. 357, 159 S.W.2d 483, 490 (1942). Until a cause of action accrues, a lawsuit is premature. Tectonic Realty Inv. Co. v. CNA Lloyd’s of Texas Ins. Co., 812 S.W.2d 647, 654 (Tex.App.Dallas 1991, writ denied). If the plaintiff is not yet harmed, even in the face of a breach of duty, then the cause of action has not yet accrued and any suit filed thereupon is premature. Philips v. Giles, 620 S.W.2d 750, 751 (Tex.Civ.App.—Dallas 1981, no writ).

Moreover, if a claim is not yet ripe, a trial court has no jurisdiction to render an opinion thereon. City of Garland v. Louton, 691 S.W.2d 603, 605 (Tex.1985). To the extent that a plaintiff seeks relief based upon facts that have not yet occurred, there is no live controversy between the parties and a trial court lacks subject matter jurisdiction over such claims. State Bar of Texas v. Gomez, 891 S.W.2d 243, 245 (Tex.1994); Jones v. Westergren, 771 S.W.2d 669, 671 (Tex.App.—Corpus Christi 1989, no writ).

Consequently, if the trial court lacks subject matter jurisdiction, the appellate court can make no order other than to reverse the case and dismiss. Gomez, 891 S.W.2d at 244; City of Garland, 691 S.W.2d at 605. Heritage’s Original Petition was filed on December 18,1987, and joined as defendants, A.G. Hill, Virgil St. Clair, Lyda Hill, Tribal Drilling Company, Stuart Hunt, Sherman Hunt, The Kickham Group, Inc., Hara Hunt, Hilre Hunt, and U.S. Financial Corporation. The original petition alleged various breaches of the J.O.A., interference with actual and prospective business relationships, and cloud of title.

The petition contained a brief statement of facts pertaining to Hunt/Hill’s challenge of Heritage’s status as Operator under the

Section 22 J.O.A. and how those actions constituted a breach of the 22 J.O.A. Heritage filed its First Amended Petition on May 1, 1992, adding a number of new plaintiffs and new defendants. At trial in 1992, Heritage presented evidence in support of its claims for tortious interference, slander of title, breach or impaired contract, and lost sales.

In jury Questions 23, 27, 34, and 39, the jury found that Heritage’s negotiations with various individuals for the sale of the alleged non-consent interests in the 22-3 well and Heritage’s negotiations with Oxford, Sun, Enserch/Lone Star, and Enron did not end before April 30, 1990 (the date two-years prior to the filing of the First Amended Petition), and that Heritage’s claims for tor-tious interference and slander of title based upon the non-consent, Oxford, Sun, En-serch/Lone Star, and Enron transactions were not barred by the statute of limitations period for these causes of action.

Hunt/Hill challenge this finding as being legally insufficient as a matter of law and factually insufficient as being against the great weight and preponderance of the evidence. A. Standard of Review When attacking the legal sufficiency of an adverse jury finding to an issue on which the appellant had the burden of proof, the appellant must demonstrate that all vital facts were conclusively established in support of the issue as a matter of law. Chandler v. Chandler, 842 S.W.2d 829, 832 (Tex.App.—El Paso 1992, writ denied)(citing Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 [Tex.1989]); see also Holley v.

Watts, 629 S.W.2d 694, 696 (Tex.1982); Montes v. Texas Employers’ Ins. Ass’n, 779 S.W.2d 485, 487 (Tex.App.—El Paso 1989, writ denied). This Court employs a two-prong test when reviewing a “matter of law” challenge on an adverse jury finding. Chandler, 842 S.W.2d at 832. First, the record is examined for evidence which supports the finding while ignoring all evidence to the contrary. Chandler, 842 S.W.2d at 832; Sterner, 767 S.W.2d at 690; Holley, 629 S.W.2d at 696; Montes, 779 S.W.2d at 487.

If there is no evidence to support the finding, we then examine the whole record to determine if the contrary position is established as a matter of law. Chandler, 842 S.W.2d at 832; Sterner, 767 S.W.2d at 690; Holley, 629 S.W.2d at 696-97; Montes, 779 S.W.2d at 487. Only if the contrary position is conclusively established will the point of error be sustained. Chandler, 842 S.W.2d at 832; Meyerland Community Improvement Ass’n v. Temple, 700 S.W.2d 263, 267 (Tex.App.—Houston [1st Dist.] 1985, writ ref'd n.r.e.).

When attacking the factual sufficiency of the failure of the fact finder to find an issue on which the appellant had the burden of proof, it must demonstrate on appeal that the failure to find is so clearly against the great weight and preponderance of the evidence as to be manifestly unjust. This standard requires us to first consider whether there is some evidence that supports the failure to find the issue, and then determine, in light of the entire record, whether the failure to find the issue is manifestly unjust. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983); Robert W.

Calvert, “No Evidence” and “Insufficient Evidence Points of Error”, 38 Texas L.Rev. 361, 364-68 (1960). B. Transactions. 1. Non-Consent Interests. Hunt/Hill complain that the evidence shows that Heritage did not attempt to sell the non-consent interests in the 22-3 well until May 1988 and that the efforts to sell those interests had failed by June 1988. Since these claims were not specifically asserted until Heritage filed its First Amended Petition on May 1,1992, Hunt/Hill argue that they are barred by limitations.

We find, however, that Texas Civil Practice & Remedies Code § 16.068 governs the application of the statute of limitations in situations such as this. It provides: If a filed pleading relates to a cause of action, cross action, counterclaim, or defense that is not subject to a plea of limitation when the pleading is filed, a subsequent amendment or supplement to the pleading that changes the facts or grounds of liability or defense is not subject to a plea of limitation unless the amendment or supplement is wholly based on a new, distinct, or different transaction or occurrence.

Tex.Civ.PRAC. & Rem.Code Ann. § 16.068 (Vernon 1997). Heritage’s original petition complained of the original defendants’ conduct in challenging Heritage’s working interest in the 22 J.O.A. and sought damages for breach of contract, intentional interference with business relations, and interference with arrangements to promote interests in the 22-3 well. When an amended pleading sets up a new cause of action under

Section 16.068, it will relate back to the date of the original pleading for the purposes of limitations, so long as the amended pleading does not allege a wholly new, distinct, or different transaction. Ex parte Goad, 690 S.W.2d 894, 896-97 (Tex.1985); Duran v. Furr’s Supermarkets, Inc., 921 S.W.2d 778, 791 (Tex.App.—El Paso 1996, writ denied). The amended claim simply does not allege a wholly new, distinct, or different transaction. Both the earlier and later claims involve the 22 J.O.A. and the parties to that operating agreement.

Non-consent interests are an integral feature of Joint Operating Agreements, and critical to this point, they are the core of this litigation. Consequently, even though Heritage’s attempts to sell the non-consent interests may have occurred after the filing of the original petition, the causes of action involving those interests do not arise from a wholly different transaction separate and apart from the originally pled breach of contract action. Heritage’s first amended petition relates back to its original petition.

Finding some evidence to support the jury’s finding that the non-consent transactions were not barred by the statute of limitations, we reject the legal sufficiency complaint. We also find that the great weight of the evidence does not support a finding that the complaint involving non-consent interest is barred by limitations. Accordingly, we overrule both portions of Points of Error 3 and 25. 2. Oxford. Heritage’s claim for tortious interference and slander of title in connection with its agreement with Oxford were not specifically pleaded until May 1, 1992.

The evidence in the record establishes that the Oxford contract was dated May 10,1987, but apparently executed in either late September or early October of 1987, prior to Heritage filing suit. Thus, at the time Heritage filed its original petition there appears in the record at least some basis that a ripe claim existed for which it could seek recovery. Heritage’s petition, although not specific as to the third party transaction that had failed, did allege causes of action for tortious interference and cloud on title arising from HunV Hill’s attempts to remove Heritage as Operator.

We find that Heritage’s original petition was sufficient to vest the trial court with subject matter jurisdiction over the Oxford claim and the First Amended Petition filed on May 1, 1992 relates back to the original petition to preserve the cause of action. Further, Hunt/Hill did not specially except to Heritage’s pleading and, therefore, any defect in pleading was waived. Tex.R.Civ.P. 90; Tex.Civ.PRAC. & Rem.Code Ann. § 16.068; Service Lloyds Ins. Co. v. Slay, 800 S.W.2d 359, 362 (Tex.App.—El Paso 1990, writ denied).

Though we can find no evidence to support the jury’s finding that the Oxford transaction did not terminate before April 30, 1990, that date is not a vital fact because of the foregoing rule of law regarding relation back. We conclude that there is legally and factually sufficient evidence in the record to find that Heritage’s causes of action with respect to the Oxford participation agreement were not barred by the statute of limitations. We therefore overrule both portions of Points of Error 7 and 29. 3. Sun, Enserch/Lone Star, and Enron Transactions.

The evidence presented at trial with respect to the Sun transaction, the En-serch/Lone Star transaction, and the Enron transaction conclusively established that they did not exist as causes of action at the time of Heritage’s filing of its original petition. Instead, the evidence shows that the Sun and Enron transactions came into existence and failed after December 18,1987. While Heritage entered into negotiations with En-serch/Lone Star as early as September 1987, the evidence also shows that the transaction did not fail until after December 18, 1987.

We determine these transactions to be wholly new, distinct, and different transactions from the causes of action pled in the original pleading, and as a result, the amended pleading may not relate back, pursuant to

Section 16.068, to the date of the original pleading for the purposes of limitations. Ex parte Goad, 690 S.W.2d at 896-97; Duran, 921 S.W.2d at 791-92. Therefore, Heritage’s claims based upon these transactions were, unlike the non-consent interests or Oxford, not ripe at the time of Heritage’s filing of its original petition and were wholly different from the causes of actions raised in the original petition.

Consequently, the trial court could not, as a matter of law, obtain subject matter jurisdiction over these claims and the statute of limitations on these claims could not have been tolled as the claims did not exist. Thus, Heritage’s first amended petition must be treated as its original petition for purposes of the subsequently arising causes of action. Under the applicable statute of limitations, Heritage was required to file suit upon these claims within two years of the date that such causes of action accrued, i.e., the date that injury to Heritage resulted. a. The Sun Transaction.

Heritage has failed to cite to any evidence in the record, and we have found none, which supports the jury finding that the Sun negotiations continued until April 30, 1990. Finding no evidence in the record to support the jury finding, we examined the record to determine if the evidence conclusively established an earlier date for the failure of the Sun transaction and accrual of Heritage’s cause of action. Rick Baldwin, manager of corporate acquisitions in 1988 and 1989, testified that Sun’s involvement with Heritage began in 1988.

Sun made two offers of contract to purchase Heritage’s interests in the Crittendon Field in February 1989 and March 1989. Michael Wisenbaker testified that in December of 1987, there was no pending transaction between Heritage and Sun regarding Heritage’s sale of its Crittendon Field interests. Furthermore, Heritage admitted in its brief that the Sun transaction did not exist, either in contract or negotiation, in December of 1987, when Heritage’s original petition was filed. The evidence is clear, unequivocal and convincing that Sun terminated its contract with Heritage on March 13, 1989.

We, therefore, find that the jury’s answer to Question 34 was not supported by legally sufficient evidence and that the evidence conclusively established an earlier date for the accrual of Heritage’s cause of action based upon the Sun transaction. Heritage’s causes of action for tortious interference with contractual relations and slander of title as to Sun began to run as of March 13, 1989. Heritage should have filed suit on those causes of action not later than March 14, 1991. The first amended petition was not, however, filed until May 1, 1992.

Heritage is, therefore, precluded from recovery on the Sun transaction for tortious interference with contract and slander of title as it failed to timely file suit on those claims. b. The Enserch/Lone Star Transaction. Heritage, again, has not cited any evidence in the record and we have not found any evidence which supports the jury finding to Question 39 that the Enserch/Lone Star negotiations continued until April 30, 1990.

Finding no evidence in the record to support the jury’s finding that the Enserch/Lone Star negotiations continued until April 30, 1990, we examined the record to determine if the evidence definitively established an earlier date for the failure of the Enserch/Lone Star transaction and accrual of Heritage’s cause of action. Michael Wisenbaker testified that there was no transaction between Heritage and Enserch/Lone Star that could have been interfered with in December of 1987.

The evidence presented at trial of negotiations between Heritage and Enserch/Lone Star establishes that the negotiations began in September 1987 and continued until December 1988. Heritage entered into evidence a November 2, 1988 memo and copies of three contracts and one loan agreement that were to be executed between Heritage and En-serch/Lone Star. In a December 7, 1988 memo, the parties contemplated execution of the contracts within two to four working days. The contracts were never signed, evidencing the failure of negotiations between Heritage and Enserch/Lone Star in December 1988.

Heritage’s cause of action accrued at that time. The jury’s answer to Question 39 was not supported by legally sufficient evidence and we conclude that the evidence conclusively established an earlier date for the failure of the Enserch/Lone Star transaction. We find the evidence to be clear, unequivocal, and convincing that Heritage’s claims for tortious interference and slander of title in the Enserch/Lone Star transaction accrued no later than December 1988. Heritage was required to file suit upon this cause of action not later than January 1, 1991; the First Amended Petition was not filed until May 1, 1992.

Therefore, Heritage is precluded from recovery on the Enserch/Lone Star transaction for tortious interference with contract and slander of title as it failed to timely file suit upon these claims. c. The Enron Negotiations. Once again, Heritage has not cited any evidence in the record, and we have not found any, which supports the jury finding that the Enron negotiations continued until April 30, 1990. As with the Sun and En-serch/Lone Star transactions, we have examined the record to determine if the evidence conclusively established an earlier date for the failure of the Enron transaction.

Michael Wisenbaker testified that there were no transactions or negotiations with Enron that could have been interfered with in December of 1987. Negotiations between Enron and Heritage began in the summer of 1989. A representative of Enron testified that the last correspondence between the parties occurred in February of 1990. Heritage has also admitted in its pleadings that negotiations between Enron and Heritage were over as of January 10, 1990, and the last correspondence between the two parties was a February 9, 1990 letter from Heritage to Enron.

The evidence presented on the issue is clear and unequivocal that negotiations between the parties ended no later than February 9, 1990, the date of the last correspondence. Consequently, Heritage’s cause of action for the failed Enron transaction accrued no later than February of 1990 and Heritage was obligated to file suit on this claim certainly no later than March 1, 1992. The First Amended Petition was filed on May 1,1992. Heritage is, therefore, precluded from recovery for tortious interference and slander of title claims as to Enron as it failed to timely file suit upon these claims. d.

Application of the Extension Statute. Heritage nonetheless argues that its original petition filed on December 18, 1987, was broad enough to place in issue all the conduct raised in subsequent pleadings. Heritage’s contention is that since the original petition was timely filed, the first amended petition properly relates back to the original petition because the causes of action relate to the same transaction or occurrence. We disagree. Heritage has cited various cases, including a number we have relied upon, which allow for the addition of claims or damages sought through post limitation amendments.

We find the argument wide of the target. In all cases cited by Heritage there existed, at the time of the original filing, a cause of action upon which the plaintiff could recover, and in each case the amendment only altered the theory of recovery, added an additional claim of relief upon the same facts, changed certain factual assertions, or sought to add to the amount claimed in damages. The controlling issue is the definition of the term “transaction.”

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