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In re Brothers Oil & Equipment, Inc.

Court of Appeals of Texas, Third District, Austin

July 31, 2017

In re Brothers Oil & Equipment, Inc.; Winchester Oil & Gas, LLC; and George Burke

         ORIGINAL PROCEEDING FROM MILAM COUNTY

          Before Chief Justice Rose, Justices Field and Goodwin

          MEMORANDUM OPINION

          Jeff Rose, Chief Justice

         Relators Brothers Oil & Equipment, Inc.; Winchester Oil & Gas, LLC; and George Burke filed a petition for writ of mandamus alleging that the district court abused its discretion by issuing an order granting summary judgment that purports to be final without disposing of all claims. We will conditionally grant the writ of mandamus.

         BACKGROUND

         The challenged order stems from a lawsuit filed by real-party-in-interest Ardent I, LLC, against Brothers Oil, Winchester Oil, Burke, Kacie Carey, and Texas Bank, N.A., [1] disputing title to ten oil and gas leases in Milam County, the wells on those leases, and other collateral.[2]Ardent's petition in the underlying suit makes claims for trespass to try title, suit to quiet title, trespass, and conversion, and seeks injunctive and declaratory relief, actual and punitive damages, and attorney's fees. Ardent filed a motion for summary judgment against Relators on Ardent's trespass-to-try title causes of action and against Texas Bank as to the leases and a pulling unit that was used for operations on the leases. Ardent's motion asked the district court to declare that Ardent had superior title over the leases, that Relators had no title or interest in the leases, and that Texas Bank had no title or interest in the pulling unit. The motion also sought removal of any cloud on Ardent's record title to the leases.

         Summary-judgment hearing postponed

         Ardent's motion for summary judgment was scheduled for hearing on October 20, 2016. After Texas Bank filed a motion contending that it had not been timely served with Ardent's motion, the hearing was passed, and the motion for summary judgment was heard on October 24, 2016. Relators filed counterclaims against Ardent for fraud in a real estate transaction and fraud in the inducement on October 17, 2016, exactly seven days before the date that the district court held the summary-judgment hearing.

         The district court signed an order on January 5, 2017, granting Ardent's motion for summary judgment.[3] However, the order did not address Carey and Texas Bank, did not address all of Ardent's claims, and did not address any of Relators' counterclaims. Further, the order does not contain any language suggesting that it is a final judgment. Apparently recognizing the issue of the summary-judgment order's finality, Ardent filed a notice of nonsuit of Carey[4] and Texas Bank on January 20, 2017, stating that Ardent desired its nonsuit to make the Order a final judgment against Brothers Oil, Winchester Oil, and Burke. The nonsuit does not address Ardent's remaining claims.

          Relators subsequently filed a motion to enter order on April 3, 2017, noting that the summary-judgment order did not contain the district court's ruling on their objections to Ardent's summary-judgment evidence. Ardent filed an objection to the motion to enter, contending that the district court lost plenary power because the summary-judgment order was signed more than thirty days before, no plenary-power-extending motion was filed, no appeal was filed, and the order was now final. Ardent specifically stated that Relators' counterclaims were untimely and filed without leave of court, "[t]herefore, defendants' counterclaims are void and struck as a matter of law." Relators filed a reply disputing Ardent's assertion that their counterclaims were untimely and alternatively, stating that leave was deemed granted when the record did not show that the district court denied leave to file the counterclaims. Relators also stated that despite Ardent's nonsuit, the summary-judgment order was interlocutory because it did not dispose of all claims-i.e., their counterclaims and Ardent's remaining claims against them-which remained pending before the district court and over which the district court still had jurisdiction.

         Finality of summary-judgment order questioned

         The district court held a hearing to determine its jurisdiction over the suit, and took the matter under advisement. The district court then sent a letter to the parties on April 20, 2017, advising that it "decided to take no further action with regard to this matter." Relators wrote a letter to the district court four days later, copied to opposing counsel, seeking clarification of whether the case remained pending or whether the court was of the opinion that it had lost jurisdiction. The district court responded by letter to the parties dated April 27, 2017, that it considered Ardent's summary judgment to be final:

In response to [defense counsel]'s letter requesting clarification, I determined that Defendants' Counter-Petition was not timely filed. That, coupled with my order granting Plaintiff's Motion for Summary Judgment, left the matter with no further issues before the court.

         Afterward, Relators filed a motion for order nunc pro tunc requesting only that the district court correct a clerical error as to the hearing date referenced in the summary-judgment order. Relators pointed out that the order stated that Ardent presented its motion for summary judgment on October 20, 2016-the date that the hearing was originally scheduled-when the order should state, consistent with the district court's file, that the hearing occurred on ...


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