East Texas Appeals Lawyer & Attorney : Jeff Rambin Law Firm : Civil and Criminal Appeals : 12th Court of Appeals, Tyler, Texas

Wells et al. v. Dotson (Published): A simple fact pattern results in a decision of "affirm in part, reverse and render in part, reverse and remand in part, and dismiss for want of jurisdiction in part."

Put this one in your files for the proposition that ratification is not a defense to breach of fiduciary duty, breach of contract, fraud, statutory fraud, or unjust enrichment.  Also, note that conduct surrounding and leading up to a contract is logically related to the contract and part of the same transaction for purposes of Tex. Civ. Prac. & Rem. Code Section 16.069.

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Johnson & Johnson v. Connor & Connor (Published): The Johnsons intended to reserve the minerals in 40 acres they were selling.  Two years after they deeded the property over to the Connors, the Johnsons discovered that the Connors had leased the minerals and were getting payments.   

Turns out the deed conveyed all of the Johnson's interest to the Connors. The Johnsons sued for reformation of the deed.  They claimed that the deed didn't match the contract.  But the contract wasn't much help either. By its plain language, it said that there were no minerals to be conveyed. (When I say plain language, I mean that the Tyler court pulled out the American Heritage Dictionary.)

So the Johnsons said that neither the contract nor the deed matched the parties' intent.  The real estate agent backed them up.  She gave an affidavit to the effect that she, the Johnsons and the Connors all had a clear oral understanding that the minerals were being reserved.

No matter.  The Connors presented affidavits saying there were no discussions about the minerals.  The Tyler court finds that there is no fact issue on the subject of mutual mistake. "The Connors were entitled to assume under the contract that they would be receiving all of the estate that the Johnsons owned."

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Mrs. & Mrs. Hill v. the Jarvis Family (Published Memo): Treble damages awarded for wrongful sale of timber by cotenants involved in a partition suit.  Good discussion of the two-stage partition suit process.  Also worth remembering that the Natural Resources Code provision allowing for treble damages for wrongful timber harvesting applies even among cotenants. Tex. Nat'l Res. Code Ann. § 151.051(a). 

Here the Hills owned 37% of a Smith County tract, with the Jarvis family owning 63%.  The trial court had already entered an order confirming those percentages, and settling all claims for contribution (such as for one side paying for more of their share of property taxes up to the date of the partition judgment).  Still pending was the second stage: the appointment of commissioners and a surveyor to actually divide the property. It was at this point that Mr. Hill had all of the timber cut and sold.  The Jarvis family gets a judgment against Mr. Hill, but their judgment against the wife was vacated because there was no evidence she participated in her husband's actions.

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In re City National Bank et al (Published): Venue case out of Rusk County.  Wyatt Norman has a car business on some land in Gregg County.  He got behind on his note, which was secured by the land.  The bank sent out notice that foreclosure was imminent.  Norman raced to the Rusk County courthouse to stop the foreclosure, suing City National Bank, a loan officer, and the loan officer's assistant.  The bank and its personnel bring a mandamus action to get venue transferred to Gregg County pursuant to Tex. Civ. Prac. & Rem. Code Section 15.011 (mandatory venue in county where land is located in suits over land).

Norman's basis for venue in Rusk County is that the assistant to the bank's lending officer resides in Rusk County.  Norman makes a litany of allegations against the bank, the loan officer and the assistant.  Norman asserts that all of these allegations transform the fundamental nature of the suit.  In his view, it is no longer a suit about land.

The Tyler court disagrees.  In the words of the Tyler court, the application of the mandatory venue statute is determined by "the ultimate or dominant purpose of a suit ...not [by] how the cause of action is described by the parties."  The whole purpose of Norman's allegations is to keep the bank from foreclosing on the land in Gregg County.  It's about the land.  The suit belongs in Gregg County.

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Thompson v. Vincent, et al. (Published Memo): Thompson failed to preserve error concerning the sale of 43.07 acres in Anderson County, Texas. The sale was ordered as part of a probate proceeding. The land was ordered to be sold, with the proceeds to be divided among several heirs.

On appeal, all of Thompson's issues went to the underlying probate proceeding -- he contested the validity of the will, he challenged the appointment of the administrator, etc. 

But, he did not directly challenge the order of sale. As a result, the order stands on appeal.

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In re Energy Transfer (Published): In a condemnation case, unless and until someone objects to the commissioners' award, mandamus is the only way to complain of a judgment that doesn't match what you think the commissioners ordered.

As long as condemnation domain cases remain before the commissioners, they are an administrative proceeding. Once the commissioners make an award, the trial court must enter judgment conforming to the award as an administrative act. The case only becomes a judicial proceeding if and when a party objects to the commissioner’s award.

Energy transfer felt that the landowner improperly presented (and the trial improperly signed) a judgment that had some “extras” that were not awarded by the commissioners. In particular, an abandonment clause, an indemnity clause, and a provision that Energy Transfer would be perpetually liable for restoration of the property. Even though Energy Transfer didn’t like those clauses, they didn’t want to object to the commissioners’ award and thereby open the matter up to a full-blown jury trial.

But since Energy Transfer did not invoke a judicial proceeding, they couldn’t pursue the judicial remedy of appeal to complain of the extras. Instead, mandamus was the only remedy available. On mandamus review, the Tyler court of appeals found no evidence that the commissioners had considered the extras. And since they weren’t considered by the commissioners, the commissioners could not have included them in their award. In the words of the Tyler court of appeals: “where a trial court fails to enter a judgment conforming to the commissioners’ award in a condemnation proceeding, that judgment is void.” Mandamus issues.

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In re Rusk Energy (Published): Trial court allowed a gas well to be drilled, but required a $100,000 bond to compensate the surface owner for damages from unreasonable use.  There certainly had been use of the surface -- at the time of the hearing, the driller had prepared the well site but had not completed the well.  Even so, it was error to require a bond because there was no evidence that the driller made unreasonable use of the surface.

The arguments against mandamus are noteworthy.

The trial court's order was something of a split decision for Rusk Energy, the majority working interest owner.  Yes, they could continue operations, but only if they posted a $100,000 bond.  Having sunk so much time and money into the well, the only sensible thing Rusk Energy could do was post the bond and get on with it.  So that's what they did.

The surface owner contended Rusk Energy's actions waived their right to seek mandamus relief.

First, the surface owner contended that the controversy became moot once Rusk Energy posted the bond.  True enough, there are situations when a party's payment of a judgment destroys their right of appeal.  But this isn't one of them.  The key is that Rusk Energy's payment wasn't free and voluntary.  A free and voluntary payment can rightly be construed as a decision to put an end to the litigation.  But, economically speaking, the trial court's order put a gun to Rusk Energy's head.  Their payment wasn't voluntary.  No one could reasonably believe such payment was free choice to end the matter.

Next, the surface owner contended that Rusk Energy's continued operations constituted acceptance of the judgment.  As before, there are cases saying you can't cherry-pick judgments -- you've got to take the bad with the good.  This is called the "acceptance of benefits" doctrine.  But, again, the acceptance has to be voluntary.  Under these circumstances, Rusk Energy's actions weren't voluntary.

Question: Who has the burden to show economic duress/lack of voluntary choice?  The opinion doesn't spell it out, but it looks like the burden is on the party claiming it.  Rusk Energy put on such evidence in this case, and their evidence was cited extensively by the Tyler court.

As a third reason to avoid the merits of the mandamus, the surface owner objected that Rusk Energy had delayed filing its mandamus for six months.  If there were no good reason for that delay, the mandamus would have gotten tossed.  But there were good reasons.  The trial court ordered the parties to mediation, and was reconsidering its ruling.  The mandamus was filed within a month after the ruling on reconsideration.  Under the facts of this case, that's reasonably timely.

The surface owner failed to show that the use was unreasonable.  There was nothing in the lease that limited the use of the surface or required the payment of damages on a per-acre basis.  So the mineral estate dominates.  The surface owner has to show that the use of the surface is unreasonable.  The surface owner here put on no such evidence.

The Tyler court doesn't rule out bonds in appropriate cases.  What if the surface owner had shown that Rusk Energy's use was unreasonable?  The Tyler court leaves open the possibility that they could have gotten a bond with proper pleadings and proof.

Rusk Energy could not have gotten this mandamus relief before 2004.  Just a few years ago, Rusk Energy would have had to show that the bond was so large that it precluded Rusk Energy's development of the merits of its case or placed it in danger of permanently losing substantial rights.  Neither was the case.  Rusk Energy had the wherewithal to continue the case.  And they could have won it, thereby getting the bond dissolved at the trial level.  So, under that standard, no mandamus would have issued.

But in 2004 the Texas Supreme Court issued In re Prudential, holding that flexibility is the "principle virtue" of mandamus, and that "rigid rules" are at odds with that virtue.  Accordingly, "significant rulings in exceptional cases may be essential to preserve important substantive and procedural rights from impairment or loss, allow the appellate courts to give needed and helpful direction to the courts that would otherwise prove elusive in appeals from final judgments, and spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings."  Hence the relief for Rusk Energy in this 2008 case.

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Sharp v. Smith (Published): Purchasers in contract-for-deed gone bad seek liquidated damages, specific performance, and in the alternative, rescission.  Sellers say: "Ah ha -- we like rescission!"  They pony up the money already paid by the purchasers, and ask for a summary judgment that: a. grants rescission and b. disposes of all of the purchasers' claims.  The trial court grants the motion.

"Not so fast, my friend" says the Tyler court.

Actually, the Tyler court's real words are: "We interpret [the seller's pleading] as a motion for partial summary judgment on the issue of election of remedies."

The sellers had picked the purchasers' remedy for them.  That's a no-no, unless the sellers meet all of the requirements for the affirmative defense of election of remedies.  There is an election of remedies when: (1) one successfully exercises an informed choice (2) between two or more remedies, rights, or states of facts (3) that are so inconsistent as to (4) constitute manifest injustice. Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 851 (Tex. 1980).   The sellers didn't prove those points.

Since the Tyler court reverses and remands on those grounds, they also address the question of: "Seller or Sellers?"

The sellers were husband and wife.  The wife didn't sign the documents.  But the property at issue was community property.  Consequently, it was error to grant the wife a summary judgment letting her out of the case.  If the purchasers wanted specific performance, the wife would have to sign the deed.

Trivia: Did you know that Lee Corso's roomate at FSU was Burt Reynolds?

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