Jones v. Strauss
| Decision Date | 24 February 1988 |
| Docket Number | No. C-7072,C-7072 |
| Citation | 745 S.W.2d 898 |
| Parties | B.H. JONES, Relator, v. Honorable Gus J. STRAUSS, et al., Respondents. |
| Court | Texas Supreme Court |
Ronald G. Byrnes and Allen R. Lazor, Byrnes, Lazor & Fischer, Houston, for relator.
Philip Gates, Gates, Stein & Sebesta, Columbus, for respondents.
This is an original proceeding for writ of prohibition in which B.H. Jones seeks to prevent Jack Colle and the two district judges in Colorado County, the Honorable Gus J. Strauss and the Honorable B.B. Schraub, from forcing him to relitigate his right to an accounting for production on a certain oil and gas producing property. Jones seeks the writ of prohibition on the basis that this court has already rendered final judgment for him in Jones v. Colle, 727 S.W.2d 262 (Tex.1987). Because a majority of the court concludes the action of Respondent Colle is in conflict with this court's opinions in Cherokee Water Co. v. Ross, 698 S.W.2d 363 (Tex.1985) and Humble Oil and Refining Co. v. Fisher, 152 Tex. 29, 253 S.W.2d 656 (1952), we grant the writ of prohibition against Respondent Colle. For the reasons given below, we deny the writ of prohibition against the district judges, without prejudice to refiling.
The controversy arose from a suit originally styled Jack Colle v. Winifred E. Curry, et al. in the Second 25th District Court of Colorado County. B.H. Jones, as Intervenor and cross-plaintiff, brought an action against Colle for declaratory relief to construe an oil and gas lease, and Colle sought cross relief over against Jones. All issues among all parties other than Jones and Colle were settled by an Agreed Judgment.
Resolution of the dispute between Jones and Colle required construction of an oil and gas lease. Colle moved for summary judgment declaring that Jones' mineral interest in a second adjacent tract was covered under Colle's lease because of the "Mother Hubbard" clause in the lease. Jones moved for summary judgment that his mineral interest was not included by the Mother Hubbard clause because it was not specifically leased and was not a small piece or strip existing without the knowledge of one or both parties to the lease. The only remedy for which Jones prayed in his motion for summary judgment was an accounting from Colle.
The trial court denied Jones' motion and granted Colle's motion, declaring that the adjacent tract was included in the lease. Jones appealed Colle's judgment against him, with no other parties involved in the appeal. The court of appeals affirmed the trial court's judgment. This court then reversed and rendered judgment for Jones in Jones v. Colle, 727 S.W.2d 262 (Tex.1987). In two separate places this court's opinion states that judgment was rendered for B.H. Jones. 727 S.W.2d at 262, 263. The written judgment recorded in the Minutes of this court states:
This court now renders judgment as should have been rendered below:
In accordance with the opinion of this court, it is ordered that:
1) as the Mother Hubbard clause applies only to properties not described in the deed when that other property consists of lands which may exist without the knowledge of one or both paries, the judgments of the courts below are reversed.
2) Judgment is rendered for B.H. Jones.
3) Jack Colle shall pay the costs in this court, the court of appeals and the trial court.
4) B.H. Jones shall recover his costs in those courts from Jack Colle.
After this court's mandate issued to the trial court, counsel for Jones sent counsel for Colle a written demand for an accounting. Colle then hired new counsel, who filed a pleading entitled "Response of Cross-Defendant Colle to Demand of Cross-Plaintiff Jones for an Accounting." The pleading set forth four new defenses to the accounting: (1) that the Agreed Judgment and documents showed that the adjacent tract was meant to be included in the lease; (2) that Jones is estopped to demand an accounting of Colle; (3) that Jones is estopped to deny the effective date for future participation in either royalty or unleased mineral interests is September 11, 1984, and therefore Colle must account only for production after that date; and (4) that Jones' failure to "market his share of the gas" was the reason for Jones' shortfall and therefore Colle should not be required to account. The new counsel also submitted an order substituting counsel, which Judge Strauss signed.
Jones asserts in this court the general proposition that Colle may not now raise new affirmative defenses to defeat the final judgment of this court. Colle in his reply argues that since nothing in the opinion or judgment expressly...
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