Hanel v. Herring, 2-01-330-CV.

• Decision Date: 06 June 2002
• Docket Number: No. 2-01-330-CV.,2-01-330-CV.
• Citation: 80 S.W.3d 167
• Parties: Alice HANZEL and D.O.H. Oil Company, Appellants, v. Ray HERRING and Harold E. O'Connor, Appellees.
• Court: Texas Court of Appeals

80 S.W.3d 167

Alice HANZEL and D.O.H. Oil Company, Appellants, v. Ray HERRING and Harold E. O'Connor, Appellees.

No. 2-01-330-CV.

Court of Appeals of Texas, Fort Worth.

June 6, 2002.

Canon & Gaston, P.C. and Michael J. Canon, Midland, for Appellants.

William G. Thompson, Breckenridge and Elton M. Montgomery, Graham, for Appellees.

PANEL A: DAY and GARDNER, JJ.; and JOHN HILL, J. (Retired, Sitting by Assignment).

OPINION

JOHN HILL, Justice (Retired).

Alice Hanzel and D.O.H. Oil Company appeal from a partial summary judgment and final judgment that set aside a sheriff's sale in which they had purchased certain mineral interests owned by Harold E. O'Connor. The judgment also awarded O'Connor a money judgment against them for attorney's fees and expenses; awarded attorney's, fees to Ray Herring, the interpleader, who had been receiving royalty payments from these mineral interests on behalf of the rightful owner of the mineral interests; and ordered the remaining funds that had been paid by the interpleader into the registry of the court to be distributed to O'Connor. Finally, the judgment ordered the return of certain consideration that appellants had given for purchase of the mineral interests in the sheriff's sale. Appellants present basically four issues: (1) whether the trial court erred by granting O'Connor's motion for summary judgment while denying their motion for summary judgment; (2) whether the trial court erred by awarding attorney's fees to O'Connor; (3) whether the trial court lacked jurisdiction because O'Connor was the debtor in a pending bankruptcy case; and (4) whether the trial court committed reversible error by overruling appellants' motion to transfer venue to Palo Pinto County. We affirm.

JURISDICTION

Appellants contend in issues 3.1 and 3.2 that the trial court lacked subject matter jurisdiction and jurisdiction to grant judgment for Herring, the interpleader, because O'Connor was the debtor in a pending bankruptcy case. On September 17, 1999, O'Connor filed a petition for bankruptcy under chapter 11. See 11 U.S.C.A. §§ 1101-74 (West 1993 & Supp.2001). This interpleader suit was filed on October 20, 1999. O'Connor answered on May 12, 2000, and filed his first amended original answer and original cross-action for declaratory judgment on November 7, 2000. The trial court granted partial summary judgment on April 18, 2001, declaring that O'Connor was the owner of the oil leases in question and canceling the sheriff's deed of those leases to appellants. On June 18, 2001, the bankruptcy judge ordered that the bankruptcy be converted to a case under chapter 7. See 11 U.S.C.A. §§ 701-66 (West 1993 & Supp.2001). The trial court granted final summary judgment on July 30, 2001.

Appellants urge that the trial court lacked subject matter jurisdiction over O'Connor's claim for declaratory judgment and to set aside their deeds to the leases in question because the claim belonged to the bankruptcy estate and the trustee did not bring the claim on O'Connor's behalf. However, with certain exceptions and limitations not applicable here, a debtor in possession in a chapter 11 bankruptcy proceeding has the right to perform all the functions and duties of a trustee serving in the case. 11 U.S.C.A. § 1107 (West 1993); In re Phillip, 948 F.2d 985, 988 (5th Cir. 1991).

In urging that O'Connor lacked the authority to bring his cross-action, appellants rely on the case of Douglas v. Delp, 987 S.W.2d 879, 882 (Tex.1999). We find that case to be distinguishable. In Douglas, the court held that the trial court lacked subject matter jurisdiction over a chapter 11 debtor's legal malpractice claim because the debtor lacked standing to pursue his claim where the trustee had sold the claim in question pursuant to a confirmed reorganization plan. Id. at 881-82. In the case at bar, there is no indication that the bankruptcy trustee had disposed of O'Connor's interest in the leases involved pursuant to a reorganization plan; rather, the trustee is appearing before us seeking to affirm the result in the court below. Appellants refer us to general language in Douglas indicating that the trustee has exclusive standing to assert a claim and that when the debtor filed his bankruptcy petition, he relinquished to the trustee his standing to prosecute or dispose of claims. See id. at 882. We note that the court made those broad statements without reference to the rights of a debtor in possession in a chapter 11 bankruptcy proceeding. Consequently, we conclude that in making those broad, general statements, the court did not intend to rule that a debtor in possession in a chapter 11 bankruptcy proceeding does not have the rights afforded under section 1107. 11 U.S.C.A. § 1107.

Appellants also argue that the court proceeding below was in violation of the automatic stay mandated by section 362 of the bankruptcy code. 11 U.S.C.A. § 362 (West 1993 & Supp.2001). However, this proceeding was not barred by the automatic stay because it involved the resolution as to whether the property is part of the debtor's estate, rather than being an action see dng to obtain possession of a part of the debtor's estate. See Shell Pipe Line Corp. v. W. Tex. Marketing Corp., 540 F.Supp. 1155, 1161 (S.D.Tex.1982).

Appellants rely on the cases of Howell v. Thompson, 839 S.W.2d 92 (Tex.1992) (order) and Bamburg v. Townsend, 35 S.W.3d 85 (Tex.App. — Texarkana 2000, no pet.). We find both to be distinguishable because neither involves claims for declaratory judgment filed pursuant to an interpleader proceeding. Howell, 839 S.W.2d at 92; Bamburg, 35 S.W.3d at 87-88. We also note that in Bamburg the court stated that the automatic stay is for the benefit of the debtor, and that if the debtor does not challenge stay violations, parties not part of the bankruptcy proceeding cannot use stay violations to their advantage. Bamburg, 35 S.W.3d at 90. We overrule issues 3.1 and 3.2.

VENUE

Appellants urge in issue 4.1 that the trial court committed reversible error by denying their motion to transfer venue to Palo Pinto County. In their motion, appellants urge that the overriding royalty interests that are the subject of the lawsuit constitute real estate located in Palo Pinto County, rather than Young County, the county where the suit was filed. They contend that the mandatory provisions of section 15.011 of the Texas Civil Practice and Remedies Code require venue in Palo Pinto County. TEX. CIV. PRAC. § REM.CODE ANN § 15.011 (Vernon Supp.2002). In the alternative, they ask that the lawsuit be transferred to their home county.

Section 15.011 of the Texas Civil Practice and Remedies Code requires that numerous proceedings involving real estate must be brought in the county in which all or a part of the property is located. Id. In response to appellants' motion to transfer venue, the interpleader, Ray Herring, contends this section is inapplicable because the title to real estate is only secondarily involved in his lawsuit to determine ownership of funds accumulated and held pursuant to a gas purchase contract.

Herring swore in an affidavit in opposition to the appellants' motion to transfer venue that the funds involved in the interpleader arose from leases located in both Palo Pinto County and Young County. The appellants, in urging that all of the leases are located in Palo Pinto County, refer us only to what are admittedly incomplete legal descriptions of the property as set forth in their motion to transfer venue. Based upon this record, we conclude that the trial court did not abuse its discretion in denying the motion to transfer venue. We overrule issue 4.1.

SUMMARY JUDGMENT

Appellants urge in issues 1.1 and 1.2 that the trial court erred in granting summary judgment for O'Connor and denying their summary judgment. O'Connor sought summary judgment, in part, based upon his contention that the sheriff's deeds upon which appellants base their claim to the overriding royalty interest are void because the property descriptions contained in them are inadequate. Appellants also sought summary judgment, based upon their claim that they are entitled to the proceeds, relying on the sheriff's deeds arising out of the tax foreclosure sale at which they purchased the royalty interest they now claim.

In a summary judgment case, the issue on appeal is whether the movant met its summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). When both parties move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both parties' summary judgment evidence and determine all questions presented. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000). The reviewing court should render the judgment that the trial court should have rendered. Id.

With respect to the adequacy of the description of property in a deed, the Texas Supreme Court has stated that in order for a conveyance to meet the requirements of the Statute of Frauds, it must, insofar as the description of the property is concerned, furnish within itself or by reference to other existing writings then in existence, the means or data by which the particular land to be conveyed may be identified with specific certainty. Pick v. Bartel, 659 S.W.2d 636, 637 (Tex.1983).

The descriptions contained in the sheriff's deeds relied upon by appellants are as follows:

Tract # 1 .025000 Overriding Royalty Interest, Crumpton-Williams Wells, Lease 1404, Texas Railroad Commission Number 19281, T.H. Wooley Survey, Abstract 1634 and James Karcher Survey, Abstract 276, Palo Pinto County, Texas (Tax Account Numbers 140420007515, 1404200075151).

Tract # 3 .025000 Overriding...