Cherokee Water Co. v. Ross

Citation698 S.W.2d 363
Decision Date30 October 1985
Docket NumberNo. C-4333,C-4333
PartiesCHEROKEE WATER COMPANY, Petitioner, v. The Hon. Donald R. ROSS, Judge, et al., Respondent.
CourtSupreme Court of Texas

Wellborn, Houston, Adkison, Mann & Sadler, Gordon Wellborn, Henderson, McGinnis, Lochridge & Kilgore, Lloyd Lochridge, John W. Stayton and Jill Beckett Cochran, Austin, for petitioner.

T.A. Bath and Dean Turner, Henderson, Jackson, Walker, Winstead, Cantwell & Miller, D.L. Case, Dallas, for respondent.

PER CURIAM.

This is an original action for writ of prohibition and writ of mandamus.

This is the second time that Cherokee Water Company has come before this court. The first time was in Cherokee Water Co. v. Forderhause, et al., 641 S.W.2d 522 (Tex.1982) ("Cherokee I"). Cherokee initiated the original action, designated No. 78-314, for a declaratory judgment and specific performance based on a deed giving it as grantee a preferential right to purchase the minerals of the subject land in the event of a sale of the minerals. Cherokee contended that the mineral owners' execution of an oil and gas lease was a "sale" within the meaning of the deed. The current proceeding has its beginnings in the procedural machinations undertaken in this first action.

Both plaintiff Cherokee and the first group of defendants filed motions for summary judgment on the legal construction of the preferential right of purchase early in the case. This first group of defendants also filed a counterclaim for reformation. The trial court interlocutorily granted Cherokee's motions for summary judgment, and denied defendants'. In October of 1979, the trial court ordered that defendants' counterclaim for reformation be severed and docketed as No. 78-314-A.

Subsequently, Cherokee amended its original petition to add new defendants. On March 13, 1980, one day before a scheduled summary judgment hearing, defendants filed an answer asserting assorted defenses, and a counterclaim for reformation. On March 14th, the day of the hearing Cherokee filed its opposition to and motion to strike the March 13th answer, asking that it not be considered in connection with the pending motions for summary judgment.

On May 15, 1980, the court issued its "Orders and Final Judgment." Besides granting Cherokee's motion regarding the construction of the deed and denying defendant's motions, the "Final Judgment" provided that Cherokee's opposition to and motion to strike the answer was granted "to the extent that" the March 13, 1980 answer "would not be considered" in connection with the pending motions for summary judgment. The counterclaim for reformation, however, was ordered severed and transferred to No. 78-314-A, the cause previously established by the trial court. The judgment declared void certain leases granted by defendants to third parties and set up a procedure for specific performance of Cherokee's right of purchase.

The court of appeals reversed, but this court reversed the court of appeals, and affirmed the trial court. We held (1) that the language of the deed was not ambiguous and that an oil and gas lease was a "sale" which triggered the preferential right of purchase, and (2) that the trial court did not abuse its discretion by severing the counterclaim for reformation from the original declaratory judgment action. The judgment of this court read:

The judgment of the Court of Appeals is therefore reversed, and the judgment of the trial court affirmed. It may proceed with the severed matter, the action for reformation.

641 S.W.2d at 526. Thus, the original action for declaratory judgment, No. 78-314, was at an end, and only the claim for reformation, No. 78-314-A, remained. The new trial Judge, the Honorable Donald A. Ross, and the defendants in the original action, however, disagree.

In an order of April 29, 1985, Judge Ross granted defendants' motion to consolidate Cause No. 78-314, the original action, with Cause No. 78-314-A, the severed claim for reformation "for purposes of trial." He also announced from the bench his intention to set the consolidated cause for trial. Judge Ross, as his response explains, was of the opinion that the original trial judge intended to decide only the "strictly legal" question of how the deed was to be construed--and not the "factual" questions raised by the defenses asserted in the March 13, 1980 answer. Cherokee subsequently filed this original proceeding for writs of mandamus and...

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  • In re Com., Record No. 080282.
    • United States
    • Supreme Court of Virginia
    • 4 Junio 2009
    ...is an appropriate remedy to prevent a lower court from proceeding contrary to the mandate of a superior court."); Cherokee Water Co. v. Ross, 698 S.W.2d 363, 366 (Tex.1985) ("When the opinion and mandate of [an appellate court] prohibit relitigation of some issues on remand, or direct that ......
  • Rusk State Hosp. v. Black
    • United States
    • Supreme Court of Texas
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    ...because a final judgment has not been rendered in the matter. SeeTex. Civ. Prac. & Rem.Code § 51.014(a); see also Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex.1985) (orig. proceeding) (per curiam) (“Unless there is a statute specifically authorizing an interlocutory appeal, the Texa......
  • In re Commonwealth, Record No. 080282
    • United States
    • Supreme Court of Virginia
    • 4 Junio 2009
    ...is an appropriate remedy to prevent a lower court from proceeding contrary to the mandate of a superior court."); Cherokee Water Co. v. Ross, 698 S.W.2d 363, 366 (Tex. 1985) ("When the opinion and mandate of [an appellate court] prohibit relitigation of some issues on remand, or direct that......
  • Quicken Loans, Inc. v. Brown
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    ...issues or causes may still be litigated.’ ” Frazier & Oxley, 214 W.Va. at 809, 591 S.E.2d at 735 (quoting Cherokee Water Co. v. Ross, 698 S.W.2d 363, 366 (Tex.1985) ). “Under a limited remand, the court on remand is precluded from considering other issues, or new matters, affecting the caus......
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