McCuen v. Huey

• Decision Date: 30 April 2008
• Docket Number: No. 10-06-00401-CV.,10-06-00401-CV.
• Citation: 255 S.W.3d 716
• Parties: Joseph W. McCUEN, et al., Appellants, v. George Philips HUEY, Jr., Appellee.
• Court: Texas Court of Appeals

255 S.W.3d 716

Joseph W. McCUEN, et al., Appellants, v. George Philips HUEY, Jr., Appellee.

No. 10-06-00401-CV.

Court of Appeals of Texas, Waco.

April 30, 2008.

Michael J. Canon, Midland, D. Scott Cain, Bradley & Cain, LLC, Cleburne, J.R. Patterson, Henderson, for appellants.

Jeffrey S. Davis, Michael J. Rogers, PC, Cleburne, for appellee.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

FELIPE REYNA, Justice.

This is a declaratory judgment/interpleader action instituted by Chesapeake Exploration Limited Partnership to determine the ownership of certain non-participating royalty interests. The trial court granted George Philips Huey, Jr.'s summary-judgment motion, declaring him to be the sole owner of these interests. The primary issues to be resolved in this appeal are: (1) whether George Philips Huey, Jr. or the heirs of his aunt Mary Huey own these non-participating royalty interests; (2) whether Chesapeake, which owns the pertinent working interests, may be required to pay the attorney's fees of an attorney ad litem appointed to represent the interests of various parties served by publication; and (3) whether those of Mary's heirs who appeared and retained counsel are entitled to their attorney's fees. We will affirm.

Background¹

The non-participating royalty interests in dispute lie within two tracts of acreage which were owned by brothers Paul Huey and George Philips Huey, Sr. ("Phil, Sr."). They inherited "Tract 1" from their father in the 1920's. They acquired "Tract 2" by two separate conveyances in the 1930's. Paul married Mary Huey in 1946. Paul, Phil, Sr. and their wives executed a warranty deed in 1950 conveying Tract 2 to the Dunsons, "reserving to [them]selves, however, a one half un-divided interest in and to the usual one eighth oil, gas and other minerals royalty (as that term is understood in Texas) of all oil, gas and other minerals in, on or under this property." A few days later, Paul and Mary executed a warranty deed conveying Tract 1 to Phil, Sr. with an identical reservation to "[them]selves."

Paul died in 1960, and his will was probated in Alabama, where Mary and he were then domiciled. His will devised his "undivided one-half interest" in the disputed lands to Phil, Sr. and named Mary as beneficiary of the residue of his estate.

Appellee George Philips Huey, Jr. ("Phil, Jr.") is the undisputed successor to any interest his mother and father held in the non-participating royalty interests at issue.

Mary died in 1967, and her will was probated in Alabama. Her will named twenty-five beneficiaries in various percentages as the devisees of the residue of her estate, which would include any interest she owned in the non-participating royalty interests at issue.²

Chesapeake acquired the working interests in 2000. It filed this suit to determine ownership of the non-participating royalty interests. Several of Mary's heirs (hereinafter, "Ettinger") appeared and filed a general denial.³ Mary's niece Joan Elizabeth Hooker Clark filed a pro se answer by letter stating her belief that she had inherited a percentage of the interests from Mary under her will. The court approved service by publication on several of Mary's heirs whose whereabouts are unknown (hereinafter, "McCuen") and appointed an attorney ad litem to represent their interests.⁴

The parties filed a Stipulation of Facts as previously noted, expressly reserving the right: (1) "to object to any of the stipulated facts on grounds of irrelevancy or immateriality"; and (2) "to offer evidence as to all facts not expressly agreed upon." Chesapeake, Phil, Jr., Ettinger, McCuen, and Clark all signed this stipulation.

Phil, Jr. filed a traditional summary-judgment motion presenting two primary arguments to support his contention that he is the sole owner of the disputed interests. First, Phil, Jr. contends that Phil, Sr. inherited these interests from Paul under his will, and Phil, Jr. in turn obtained them from his father by mesne conveyances in part and by inheritance in part. And second, Phil, Jr. contends that Mary's inclusion as a grantor in the 1950 warranty deeds conveying Tracts 1 and 2 was only pro forma and not indicative of a gift from Paul to Mary of his royalty interests.

Ettinger filed a hybrid summary-judgment motion containing both no-evidence and traditional summary-judgment claims. Ettinger's summary-judgment evidence includes: (1) the Petition for Final Settlement filed by Mary in Paul's probate proceedings, in which Mary stated that Paul's interests had been disposed of before his death; and (2) the probate court's decree that Mary was Paul's sole legatee and devisee. Based on these probate documents, Ettinger contends that neither Chesapeake nor Phil, Jr. can produce "more than a scintilla of evidence which would raise a material issue of fact regarding the transfer of Paul Huey's royalty interest in his probate proceedings."

In the traditional portion of the summary-judgment motion, Ettinger argues that she is entitled to judgment as a matter of law because: (1) the aforementioned probate proceedings establish that she and Mary's other heirs inherited the disputed interests; (2) the warranty deeds referenced in Phil, Jr.'s summary-judgment motion constituted a gift from Paul to Mary or memorialized such a gift; or (3) ownership of Paul's royalty interests is governed by the laws of intestate succession because those interests were not addressed by the probate court and any probate of Paul's will in Texas is now barred by limitations.

McCuen filed a traditional summary-judgment motion contending, much like Ettinger, that: (1) the Alabama probate proceedings establish that Paul gave the royalty interests to Mary before his death; and (2) the warranty deeds and other pertinent documents memorialize this gift.

Phil, Jr. challenged these contentions in his summary-judgment response. First, he argued that Ettinger and McCuen failed to conclusively establish a parol gift of the interests from Paul to Mary because there is no evidence that Mary took possession of these interests or made valuable and permanent improvements thereto. Second, Phil, Jr. argued that the Alabama probate proceedings did not address the royalty interests presently in dispute because Phil, Sr. and Mary "overlooked" these interests.

In Ettinger's response to Phil, Jr.'s summary-judgment motion, she first objected to two portions of the supporting affidavit Phil, Jr. signed and attached to his motion on the basis that these portions contained inadmissible conclusory statements. On the merits, Ettinger sought to distinguish one of the cases relied on by Phil, Jr.; she reurged her contention that the Alabama probate proceedings are conclusive on the ownership question; and she argued that Phil, Jr. was not entitled to a summary judgment on Ettinger's and McCuen's "gift theory" because he failed to specify which elements of this theory he was challenging.

McCuen raised similar objections to Phil, Jr.'s affidavit in his summary-judgment response. Otherwise, McCuen merely challenged Phil, Jr.'s contentions as speculative and inadequate to justify a summary judgment in his favor.

Chesapeake, Ettinger, and McCuen all sought attorney's fees. Chesapeake did so by motion supported by affidavit of counsel. Ettinger requested attorney's fees in her summary-judgment motion and supported this request with an affidavit of counsel. McCuen initially filed a motion for attorney's fees without supporting proof. Phil, Jr. requested in his summary-judgment motion that each party pay his or her own attorney's fees.

Near the conclusion of the summary-judgment hearing, McCuen's counsel advised the court that he had an attorney's-fee affidavit ready to present to the court at that moment or on another day if the court preferred to address attorney's fees in a later hearing. After hearing additional argument and inviting each party to submit a proposed judgment, the court advised McCuen's counsel that he would prefer to address attorney's fees in that hearing. Chesapeake's counsel stated that he would not object to "whatever the Court determines to be the appropriate amount of attorney's fees." Phil, Jr.'s counsel stated that he had no objection, "knowing that [Chesapeake] is going to take care of those fees." Chesapeake's counsel promptly responded that Chesapeake had not agreed to "take care" of those fees.

McCuen's counsel suggested that he submit his affidavit to the court "and then maybe allow all the parties to submit a very, very brief brief on who should pay for it." Chesapeake's counsel stated on the record that he had no objection to the admission of the affidavit, and it was admitted. Counsel for Phil, Jr. and for Ettinger both agreed that Chesapeake should be required to pay McCuen's attorney's fees. Chesapeake's counsel argued that Chesapeake should not have to pay these fees and further advised the court that Chesapeake wanted the court to order one of the other parties to pay Chesapeake's attorney's fees. The court took the issue under advisement.

The court signed a final judgment granting Phil, Jr.'s summary-judgment motion and ordering Chesapeake to pay McCuen's trial attorney's fees. McCuen filed a combined motion for leave to file supplemental evidence on the issue of appellate attorney's fees and motion to modify the judgment to include appellate attorney's fees. This pleading was supported by affidavit of counsel stating what counsel believed to be reasonable and necessary appellate attorney's fees.

In a post-judgment hearing, Phil, Jr. and Chesapeake disputed, among other things, whether the appellate attorney's fees sought by McCuen were reasonable and necessary. However, Ettinger agreed that the fees sought by McCuen were reasonable and necessary. After the hearing the court granted McCuen leave to file the additional evidence by signed order. The court also signed an amended judgment awarding McCuen the...