Mcbride v. James
| Decision Date | 24 March 2011 |
| Docket Number | NO. 02-09-00446-CV,NO. 02-09-00320-CV,02-09-00320-CV,02-09-00446-CV |
| Parties | TERRY MCBRIDE APPELLANT v. JOHN JAMES APPELLEE TERRY MCBRIDE AND RICHARD GUEST APPELLANTS v. JOHN JAMES APPELLEE |
| Court | Texas Court of Appeals |
FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
In this consolidated appeal, 2 Appellants Terry McBride and Richard Guest independently appeal from the trial court's orders in this dispute over the proceeds from the sale of an oil rig and related equipment (the Rig). We affirm.
In 2005, in a prior action in Parker County, McBride sued Lee C. "Skip" Potts, seeking payment on the promissory note Potts signed related to the purchase of the Rig (the Parker County Lawsuit). Potts was Appellee John James's business partner and coshareholder in the closely held corporation Black Jack Exploration, Inc., an oil exploration and drilling services firm. McBride's petition in the Parker County Lawsuit stated that on June 14, 2005, Potts (borrower) signed a promissory note agreeing to pay McBride (lender) $215,000 plus interest. McBride's petition alleged breach of contract and included a claim based on a sworn account. McBride sought not only judgment on the debt Potts owed but also a The McBride-Potts promissory note lists the Rig as security interest and McBride as the secured party.
After Potts answered with a general denial, McBride invoked rule of civil procedure 185 and moved for a no-evidence summary judgment based solely on his sworn-account claim. In his petition, McBride stated that Potts had [Emphasis added.] McBride also stated that his "claim is based upon and pled as a sworn account." After a hearing, the Parker County trial court granted McBride summary judgment and awarded him $215,000 plus interest.
In July 2006, James, individually and derivatively as Black Jack's shareholder, brought suit against McBride, Guest, and others3 for damages and injunctive relief claiming that because Black Jack and not Potts had purchased the Rig, Black Jack was entitled to the proceeds from the Rig's sale (the McBride-James Lawsuit).
In the McBride-James Lawsuit, in late November 2007, Guest filed a Motion to Put (the) Rig to Work. At the hearing on Guest's motion, a rule 11 agreement was read into the record wherein the parties granted Guest possession of the Rig to put it into operation or to lease it out with the proceeds remitted to a receiver pending the litigation's outcome. On November 30, 2007, the trial court issued an order approving the parties' rule 11 agreement. On January 23, 2008, the parties reached a mediated settlement agreement wherein they agreed to sell the drilling equipment for $600,000 and "to cooperate in efforts to sell the [R]ig."
On March 4, 2008, Guest, relying on the parties' mediated settlement agreement, filed a motion to dismiss James's claims. A day later, James filed a motion seeking sanctions and asking the trial court to declare the settlement agreement "null and void," claiming that Guest's failure to provide the Rig's location and his evasiveness had caused the parties to lose a $600,000 sales opportunity. At the April 16, 2008 hearing on James's motion, after hearing testimony that Guest had not put the Rig into operation, had failed to disclose the Rig's location, and did not respond to telephone calls, and that James's independent efforts to locate the Rig had failed, the trial court terminated the settlement agreement. After terminating the parties' agreement, the trial court ordered the Rig sold and the proceeds deposited in the court registry. On May 13, 2008, Guest filed objections to the trial court's April 18, 2008 order. Guest filed a motion to reinstate the settlement agreement, and requested a jury trial to enforce the agreement. After a hearing, the trial court denied Guest's motion. Neither order contains provisions to sever the rulings from cause number 164,684-B.
In May 2009, James, relying on the position McBride had taken in the Parker County Lawsuit relative to the Rig—that of secured creditor—successfully moved for partial summary judgment on the Rig's ownership. In his response to James's motion for partial summary judgment, McBride indicated that the [Emphasis added.] The response also indicated that at the time the trial court rendered its decision in the Parker County Lawsuit, "McBride had already peacefully repossessed the [R]ig." In closing his response McBride stated that he
McBride's response includes excerpts from Potts's, McBrides's and James's depositions taken in the McBride-James Lawsuit. Both James and Potts stated that they purchased the Rig from a third-party, Ronnie Cubine, and that they paid Cubine with cash and a cashier's check. James averred that McBride provided the funds Black Jack used to purchase the Rig (a check made out to Black Jack), that the check was advance payment for wells Black Jack contracted to drill for McBride, and that Black Jack did drill two wells for McBride. Potts indicated that McBride furnished the money for the Rig with the "full intention that [it] was [McBride's] equipment," but also noted that when he picked up the check, McBride requested that Potts sign a promissory note.
McBride averred that he was not aware of Black Jack until after the company began drilling, that he bought a Rig that Potts took to drill wells with, that Potts was supposed to pay him back, that he personally did not pay Cubine, that he financed the purchase of the Rig for Potts, that he (McBride) owned the Rig, and that once Potts paid McBride for the Rig, Potts would obtain title to it. McBride agreed that the promissory note is the transaction's only documentation. McBride also admitted that after he peaceably foreclosed and took possession of the Rig, he still pursued the Parker County Lawsuit against Potts—ultimately ending up with both possession of the Rig and judgment against Potts for $215,000. McBride indicated that he sold the Rig to Guest but that Guest had not yet paid him anything for the Rig.
On July 2, 2009, without conducting a hearing, the trial court granted James's motion for partial summary judgment in the McBride-James Lawsuit. In its order, the trial court concluded that:
The trial court then severed this ruling from James's remaining causes of action into cause number 164,684-B-1. On September 17, 2009, McBride filednotice of his intent to appeal the severed summary judgment. On November 12, 2009, the trial court granted a declaratory judgment, awarded Black Jack the proceeds of the sale in the court registry, and severed the declaratory judgment into cause number 164,684-B-1, the same cause number as its ruling on the partial summary judgment. McBride's and Guest's appeals followed.
Guest asserts two independent issues, alleging that the trial court erred by terminating, and then failing to reinstate, the mediated settlement agreement, actions the trial court took prior to granting the summary judgment. However, there does not appear to be a final, appealable judgment or order as to these issues, as the trial court did not sever these rulings out, and they remain in the parent cause of action, cause number 164,684-B. Therefore, we dismiss these issues for want of jurisdiction. See Tex. R. App. P. 43.2(f).
In two issues, McBride argues that the trial court erred by granting James's motion for summary judgment and by issuing a declaratory judgment awarding the proceeds from the sale of the Rig to Black Jack based on the summary judgment. Guest adopts McBride's issues.
In a summary judgment case, the issue on appeal is whether the movant met the 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); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo. Mann Frankfort, 289 S.W.3d at 848; Kaufman v. Islamic Soc'y of Arlington, 291 S.W.3d 130, 143-44 (Tex. App.—Fort Worth 2009, pet. denied).
We take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort, 289 S.W.3d at 848. We must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of...
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