Steele v. McDonald, No. 10-05-00266-CV (Tex. App. 8/1/2007)
| Decision Date | 01 August 2007 |
| Docket Number | No. 10-05-00266-CV.,10-05-00266-CV. |
| Parties | GENE C. STEELE, INDIVIDUALLY AND AS INDEPENDENT EXECUTOR OF THE ESTATE OF WILLIAM B. DUKE, DECEASED, SALLY STEELE, AND TOM F. SIMMONS, Appellants, v. DOROTHY McDONALD, INDIVIDUALLY AND AS INDEPENDENT EXECUTRIX OF THE ESTATE OF JOHN B. McDONALD, DECEASED, BOBBY REED, JOE CANNON, CARA H. HUGHES, EUGENE T. MCLAUGHLIN, STANLEY F. SWENSON, JERRY CALHOON, J. CHRISTOPHER KOLSTAD, BOBBY FREEMAN, DEVON ENERGY OPERATING CO., F/K/A MITCHELL ENERGY CORP., BRIAN L. GIBSON, AND FLOYD DUKE, JR., Appellees. |
| Court | Texas Court of Appeals |
Appeal from the 77th District Court, Limestone County, Texas, Trial Court No. 22179-A.
Affirmed as modified.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
This appeal is the most recent chapter in litigation spanning more than two decades regarding title to a 927.822-acre1 tract of land and the minerals therein. During the midst of a jury trial, the parties informed the court that they had settled their dispute. The settlement agreement was recited on the record, and the court orally rendered judgment in accordance with the agreement. The court signed a written judgment about three months later.
Appellants contend in three issues that: (1) the court erred by signing the written judgment after they withdrew their consent to the underlying settlement agreement; (2) the court failed to render a valid, enforceable judgment because the judgment does not contain a metes-and-bounds description of the property in dispute; and (3) the court abused its discretion by refusing to grant their supplemental motion for new trial.2 We will modify the judgment and affirm it as modified.
There are essentially four groups of parties to this litigation. In this opinion, the parties will sometimes be referred to individually and sometimes in their respective groups. Unless otherwise indicated, the term "Appellants" refers to Plaintiff Gene C. Steele, Individually and as Independent Executor of the Estate of William B. Duke, Deceased, Plaintiff Sally Steele (Gene's wife), and Third Party Defendant Tom F. Simmons.
"Defendants/Appellees" refers to Appellees Dorothy McDonald, Individually and as Independent Executrix of the Estate of John B. McDonald, Deceased, Bobby Reed, Joe Cannon, Cara H. Hughes, Eugene T. McLaughlin, Stanley F. Swenson, Jerry Calhoun, J. Christopher Kolstad, Bobby Freeman, and Brian L. Gibson. At some point during the litigation, John B. McDonald passed away.3 His interests are currently represented by his wife Dorothy who is the independent executrix of the estate. Insofar as can be determined, no suggestion of death was ever filed, no scire facias was issued, and the plaintiffs' pleadings were never amended to name Dorothy McDonald as the person representing the interests of John B. McDonald's estate. See TEX. R. CIV. P. 152.
Dorothy has filed a motion to dismiss this appeal as to her because she is not named in the notice of appeal and was never served with a copy of the notice. Dorothy is not identified as a party in the notice of appeal, and it does not appear that she was served with a copy. The certificate of service in the notice of appeal recites only that a copy was served on "counsel for Defendants," and the docketing statement, which was filed within a week after the notice of appeal, does not include Dorothy's counsel as one of the attorneys of record.
Nevertheless, Dorothy's counsel has since appeared on her behalf and has filed a brief on her behalf. It is also noteworthy that Appellants hired a new attorney shortly after trial and, given the state of the trial record regarding the death of John B. McDonald and the shear number of parties involved, it is somewhat understandable that Appellants' counsel failed to include Dorothy's attorney in the list of counsel of record. Therefore, because Dorothy's counsel has had notice of and sufficient opportunity to participate in this appeal, we deny the dismissal motion premised on lack of notice. See Bernstein v. Portland Sav. & Loan Ass'n, 850 S.W.2d 694, 699-700 (Tex. App.-Corpus Christi 1993, writ denied).
The other parties are Intervenor/Appellee Floyd Duke, Jr. and Interpleader/ Appellee Devon Energy Operating Co. fka Mitchell Energy Corp.
As read into the trial record, the settlement agreement provides in pertinent part:
• Defendants/Appellees agreed to accept a 60-percent interest in the minerals in the entire 927.822-acre tract for 20 years;
• Appellants agreed to not make any further claims against the other parties to the litigation or any related litigation, including any successors or assigns;
• Gene and Sally Steele would receive fee simple title to 150 acres out of the 927.822-acre tract which would include "the lake, the landing strip, the house [Gene] occupies, the 100 acres described in the instruments in evidence in this case, plus 50 additional acres contiguous thereto to be designated by [Intervenor/Appellee Duke4 ]";
• Duke would receive fee simple title to the remaining acreage;
• For 20 years, the Steeles would own a 40-percent interest in the minerals in and under their 150 acres, and Duke would own a 40-percent interest in the minerals in and under his acreage;
• After that 20-year period, the Steeles would own 100 percent of the minerals in and under their acreage, and Duke would own 100 percent of the minerals in and under his acreage;
• no party would interfere with the lease or production of the minerals owned by another party;
• funds held by Interpleader/Appellee Devon Energy Operating Co. would be deposited in the court's registry then divided evenly between the Steeles and Duke;
• Defendant/Appellees would "have the right and the authority to lease their minerals without the joinder of the remainder in [the Steeles] and Duke";
• the agreement would "foreclose with prejudice all pending suits relative to the lands and minerals and parties";
• Duke would be allowed ingress and egress to his parents' burial sites which lie on the Steeles' property;
• all lis pendenses would be discharged and all pending cases dismissed with prejudice; and
• each party waived the right to file a motion for new trial or appeal.
Each party stated on the record that these were the terms of the agreement, and the court orally rendered judgment in accordance with the agreement.
A question then arose about the necessity of a new survey. The court suggested that the cost for the survey be paid out of the funds to be deposited in the court's registry by Devon Energy and that the remaining funds be distributed evenly between the Steeles and Duke in accordance with the parties' agreement. The parties stated on the record that they agreed with this suggestion. The court rescheduled the matter to January 25 (two weeks) to allow time for the survey to be done.
Duke's counsel advised the court by letter dated January 20 that counsel had been unable to locate a surveyor who could complete the job before the hearing and asked for a 30-day postponement.
Defendants/Appellees drafted a proposed "Agreed Judgment" and filed a motion for entry of judgment. Duke likewise drafted a proposed "Final Judgment" and filed a motion for entry of judgment. In response to Defendants/Appellees' proposed judgment, Appellants filed a pleading entitled "Objections and Motion to Withhold Entry of Agreed Judgment and Motion to Vacate Agreed Settlement." In this pleading, Appellants asserted numerous "general" and "specific" objections to the settlement agreement and the proposed judgment.
Duke argued in a response that Appellants' motion was "too late" and "without merit." After a hearing on April 8, the court signed the judgment.
Appellants filed a motion for new trial within a week after the judgment was signed. They later filed a "Designation of 100 Acres Under Objection and Motion for Judgment Nunc Pro Tunc" in which they asserted most of the same objections previously made to the settlement agreement and the proposed judgment. They also objected that the judgment was "incomplete and not final" because it did not contain a legal description of the various tracts of property affected by the judgment. Finally, they argued that the judgment recitals were inconsistent with the settlement agreement which required that the 100-acre tract designed by the Steeles be that acreage "described in the instruments in evidence in this case" and including the lake, the landing strip, and the house. According to Appellants, the 100-acre tract described by the deeds in evidence does not include the house. Therefore, they asked the court to also include an additional 30.07-acre tract on which the house sits.
Duke designated a contiguous 50-acre tract as provided by the settlement agreement. The 50 acres designated by Duke is actually comprised of two tracts: (1) the 30.07-acre tract sought by Appellants; and (2) a 20-acre tract. Duke also responded to Appellants' motion for judgment nunc pro tunc and urged that it be denied.
On June 21, Appellants filed a "Supplement Motion for New Trial" urging the court to set aside the judgment because of "fraud and aggravated perjury." In this motion, Appellants argued that Duke's claim to the disputed property was based on a forged deed. Appellants' post-judgment motions were overruled by operation of law. See Tex. R. Civ. P. 329b(c).
Appellants contend in their first issue that the court erred by signing the written judgment after they withdrew their consent to the underlying settlement agreement.
A court cannot render a valid consent judgment unless all parties consent to the terms of the judgment at the time of rendition. Chisholm v. Chisholm, 209 S.W.3d 96, 98 (Tex. 2006) (per curiam). "Judgment is rendered when the trial court officially announces its...
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