Mobil Exploration & Producing U.S. Inc. v. McDonald, 09-90-019

• Decision Date: 20 June 1991
• Docket Number: No. 09-90-019,09-90-019
• Citation: 810 S.W.2d 887
• Parties: MOBIL EXPLORATION & PRODUCING U.S. INC., Appellant, v. W.R. McDONALD and Vivian C. Burch, Appellees. CV.
• Court: Texas Court of Appeals

Page 887

810 S.W.2d 887

MOBIL EXPLORATION & PRODUCING U.S. INC., Appellant, v. W.R. McDONALD and Vivian C. Burch, Appellees.

No. 09-90-019 CV.

Court of Appeals of Texas Beaumont.

June 20, 1991.

Rehearing Denied July 8, 1991.

Susan G. Wright Holtz & Wright, Houston, for appellant.

H.A. Coe, Jr., Kountze, Joe G. Roady, Houston, for appellee.

Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.

OPINION

BURGESS, Justice.

Mobil Exploration & Producing U.S. Inc. ("Mobil") seeks review by writ of error from a declaratory judgment suit between W.R. McDonald and Vivian C. Burch. The original suit was entitled "Choice M. Thompson and Syble Day Thompson v. Mobil Producing Texas & New Mexico, Inc., Union Texas Petroleum Corp., J.M. Huber Corporation, et al." W.R. McDonald filed an intervention in which he claimed an interest in 33.5 acres which were also claimed by Vivian C. Burch, a named defendant. This intervention was severed from the original suit. McDonald filed a petition for declaratory judgment that he owns fee simple title to a 33.5 acre tract out of the R.B. Irvine Survey, Tract 33, Hardin County, Texas, and a proportionate interest in monies on deposit in the Registry of the court and in production from the Choice M. Thompson Unit No. 1.

The case was tried to the court. McDonald claimed title to the land through a 1985 deed from Gemilla Hughes, the surviving widow of Vernell Hughes. Burch claimed title through a 1948 deed from Vernell Hughes and wife, Ida Mae Hughes, to Thomas B. Burch. Thomas Burch was Vivian Burch's husband, since deceased. The judgment entered July 17, 1989 declares (1) that the 1948 deed from Vernell Hughes to Burch conveyed an undivided 18.5 acres out of a tract owned by the grantors in the R.B. Irvine Survey, A-33, Hardin County, Texas, and being Tract No. 6 partitioned to Vernell Hughes in a partition instrument recorded in Volume 325, page 388 of the deed records of Hardin County, Texas ("the Partitioned Tract"); (2) that the effect of the 1985 deed from Gemilla Hughes to McDonald was to convey whatever interest Gemilla Hughes had in the Partitioned Tract; and (3) that the interest of Vivian Burch to the Partitioned Tract is an undivided interest in 18.5 acres and the interest of McDonald is measured by calculating one-half of the difference between 18.5 acres and the total number of acres in the Partitioned Tract (called to be 33.5 acres).

On January 16, 1990, within six months of the date of judgment, Mobil filed a petition for writ of error. Mobil avers it is the lessee under an oil, gas and mineral lease covering the 33.5 acre tract in dispute. The petition alleges Mobil has at all times relevant to the suit "possessed a privity of estate, title or interest" with Vivian Burch, its Lessor. Mobil further claims the judgment had the effect of divesting it of its fee simple determinable interest in the minerals.

By point of error one Mobil contends it has standing to seek review of the declaratory judgment. McDonald has filed a motion to dismiss the appeal on the grounds that Mobil lacks standing to appeal by writ of error.

The four elements necessary for a review by writ of error are: (1) the petition must be brought within six months of the date of judgment; (2) by a party to the suit; (3) who did not participate in the trial; and (4) error must be apparent from the face of the record. Stubbs v. Stubbs, 685 S.W.2d 643 (Tex.1985). See TEX.R.APP.P. 45.

Mobil was not a named party to the suit. As a general rule, appeal by writ of error is available only to parties of record. Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex.1965). Mobil contends it is entitled to pursue the writ because it holds privity of estate with Vivian Burch. Writ of error may only issue "at the instance of a party to the suit, or of one whose privity of estate, title or interest appears from the record of the cause in the court below, or who may be the legal representative of such party." Smith v. Gerlach, 2 Tex. 424 (1847).

Privity has been found in appeals by writ of error in three types of cases: (1) class actions, Robertson v. Blackwell Zinc Co., Inc., 390 S.W.2d 472 (Tex.1965); (2) will contests, Specia v. Specia, 292 S.W.2d 818 (Tex.Civ.App.--San Antonio 1956, writ ref'd n.r.e.); and (3) suits where the parties come under the doctrine of virtual representation, Hubbard v. Lagow, 567 S.W.2d 489 (Tex.1978), California & Hawaiian Sugar Co. v. Bunge Corp., 593 S.W.2d 739 (Tex.Civ.App.--Houston [1st Dist.] 1979, writ ref'd n.r.e.).

The rationale for the doctrine of virtual representation is best expressed in Grohn v. Marquardt, 487 S.W.2d 214 (Tex.Civ.App.--San Antonio 1972, writ ref'd n.r.e.):

It appears that the cases in which a non-party was allowed to appeal rest upon the doctrine of representation. This doctrine reflects the efforts of courts to strike a balance between two competing aims of our system of justice. On the one hand, we have the fundamental notion that the owner of an interest in property is not bound by a judicial determination concerning that property which is made in a proceeding to which such owner is not a party. But there is another important consideration which runs counter to the general desirability of holding that an individual who is not a party to a judicial proceeding is unaffected by the judgment entered in that case. It is important to the administration of justice that certain controversies be settled without delay.

....

It is clear that, in any case in which the doctrine of representation is held to be applicable, the "represented" individual is bound by a judgment rendered in a case to which he is not a party. When a non-party is allowed to challenge a judgment, the decision to allow him the right to appeal is grounded on the fact that, because of the doctrine of representation, he is bound by the judgment.

487 S.W.2d at 216-17.

In order to demonstrate standing, Mobil must show it would be bound as a privy to the judgment. In cases applying the various rules of res judicata, privity is generally defined as a mutual or successive relationship to the same rights in property; "that is to say, all persons are privy to a judgment whose succession to the rights of property therein adjudicated are derived through or under one or the other of the parties to the action, and which accrued subsequent to the commencement of the action." Kirby Lumber Corp. v. Southern Lumber Co., 145 Tex. 151, 196 S.W.2d 387, 388 (1946). A privy is one so connected in law with a party to the judgment as to have such an identity of interests that the party to the judgment represented the same legal right. Benson v. Wanda Petroleum, 468 S.W.2d 361 (Tex.1971). They include (1) those who control an action although not a party to it; (2) those whose interests are represented by a party to the action; and (3) successors in interest. Id. at 363.

Appellant states without objection that Mobil obtained an oil, gas and mineral lease from Vivian Burch before the date McDonald filed suit. An oil, gas, and mineral lease conveys a fee simple determinable interest in real property. Cherokee Water Co. v. Forderhause, 641 S.W.2d 522 (Tex.1982); W.T. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27 (1929). Thus, we consider Mobil was an owner of record of an interest in real estate at the time the suit was filed. Mobil does not contend that it controlled the original litigation; in fact, it disavows any knowledge of the intervention. Mobil is not a purchaser pendente lite, but obtained its mineral lease before the suit commenced, and thus was not a successor in interest. Burch did not represent Mobil's interest in the suit because the connection between the parties, the mineral lease, was executed before suit commenced. See Gray v. Joyce, 485 S.W.2d 311 (Tex.Civ.App.--Tyler 1972, writ ref'd n.r.e.).

The declaratory judgment statute does not compel a different result. All persons who have any interest that would be affected by the declaration shall be made parties to a declaratory judgment action. A declaration does not prejudice the rights of a person not a party to the proceeding. TEX.CIV.PRAC. & REM.CODE ANN. § 37.006(a) (Vernon 1986).

We find that Mobil has not satisfied the second requirement for review by writ of error. We also find that Mobil has not satisfied the fourth requirement for review, that there be error apparent from the face of the record. The record available for review on appeal by writ of error consists of the judgment and those papers filed in the appellate transcript, but does not include any written or oral evidence. ¹ Writ of error practice requires the invalidity of the judgment to be shown from the papers on file in the case. Comisky v. Comisky, 597 S.W.2d 6 (Tex.Civ.App.--Beaumont 1980, no writ); Eagle Life Insurance Co. v. George, 473 S.W.2d 311 (Tex.Civ.App.--Beaumont 1971, writ ref'd). Mobil does not contend that the judgment is not in conformity with the findings of fact, but rather complains that the trial court's findings of fact and conclusions of law do not conform to the evidence presented in this proceeding. Even if true, such is not "error apparent of the face of the record."

We hold Mobil has not demonstrated standing to pursue a writ of error in this cause. The appeal by writ of error is dismissed.

WRIT DISMISSED.

BROOKSHIRE, Justice, dissenting.

With respect this dissenting opinion is filed. The Court's opinion concedes that McDonald filed a petition for declaratory judgment wherein he asserts that he is the owner of a fee simple title to 33.5 acres of land out of the R.B. Irvine Survey, Abstract 33 in Hardin County and as such, McDonald owns in addition a certain proportionate interest in monies on deposit in the registry of the court and also in continuing production from a well described as the Choice M. Thompson Unit No. 1 well.

Mrs. Burch claimed title through a 1948 deed from Vernell Hughes and Ida Mae, his first wife. The judgment below...