Labbe v. Carr
| Decision Date | 26 June 1963 |
| Docket Number | No. 14135,14135 |
| Parties | Louis F. LABBE et al., Appellants, v. F. William CARR, Appellee. |
| Court | Texas Court of Appeals |
Sidney P. Chandler, Corpus Christi, for appellants.
Head & James, Corpus Christi, for appellee.
This is an appeal from a summary judgment which permanently enjoined appellants, the Labbe Family, from interfering with appellee's possession and operation of an oil and gas lease, and further provided that appellants take nothing by their crossaction against appellee. On a prior appeal we affirmed the temporary injunction granted Carr by the trial court. See 352 S.W.2d 860.
The Labbe Family as leasing agents for the State, of land within the Texas Relinquishment Act, Arts. 5367-5371, Vernon's Ann.Rev.Civ.St., executed the lease which was subsequently assigned to Carr, and upon which is located a producing well. After the temporary injunction was affirmed, the Labbe Family filed a cross-action against Carr in which they assert three counts: (1) They allege that on April 11, 1961, Carr voluntarily abandoned and surrendered the lease and the producing well to them, and they operated it from April 11, 1961, until August 14, 1961. In this count they pray for possession and exclusive right of operation of the lease. (2) They allege that, after they took over operation of the well, it was necessary to expend from $900 to $1,000 for repairs to the machinery and maintenance of the well. They pray for this sum and for foreclosure of their mechanic's and materialman's lien upon the well and machinery. (3) They allege that Carr failed to develop the lease as an ordinarily prudent operator and that they thereby were not paid a production payment of $6,000, which they should have received under the terms of an assignment of the lease from the original lessee to Carr.
The transcript does not show that Carr filed an answer to this cross-action, although his motion for summary judgment referred to a supplemental petition in answer to the cross-action. His motion for summary judgment is unsworn and is based upon the pleadings, the prior opinion of this Court, an affidavit of his production superintendent, and an unsworn letter from the Duval County Clerk. The affidavit of Carr's production superintendent stated that no itemized claim was presented by the Labbe Family after April 11, 1961. The letter from the County Clerk advised that no itemized mechanic's or materialman's lien was filed in the Duval County records by the Labbe Family. In opposition to the summary judgment, the Labbe Family adopted the statement of facts of the hearing on temporary injunction, which was filed in connection with the prior appeal, and urged that genuine issues of material facts were raised in the unanswered crossaction.
Carr urges that our prior opinion makes final disposition of all fact issues on the question of possession which is a necessary element to the Labbe Family's claim of abandonment. It is seen, however, that the only issue before us on that appeal was whether the trial court abused its discretion in holding that the last peaceable possession of the lease was that of Carr and that this was the status quo to be maintained pending trial on the merits. We held that the trial court did not abuse its discretion and set forth evidence to support its implied finding. There was evidence to the contrary. Emil Labbe testified that the well servicing company employed by Carr to look after the well after Labbe quit did not begin its work until August 6, 1961; Labbe testified that Carr refused to pay for repairs to the well pump incurred in April, 1961. In addition, the record...
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