                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-12-00262-CV


BETTY LOU BRADSHAW                                              APPELLANT

                                       V.

PETER G. BENNIS AND                                             APPELLEES
CLEBURNE BIBLE CHURCH


                                    ----------

          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

                                    ----------

                       MEMORANDUM OPINION 1

                                    ----------

     This is an appeal from the trial court’s judgment releasing interpleaded

funds to Peter G. Bennis and Cleburne Bible Church (CBC). We affirm.

                                  Background

     A detailed description of the history of the underlying trial court case

preceding this interpleader action may be found in Bradshaw v. Steadfast

     1
      See Tex. R. App. P. 47.4.
Financial, L.L.C., No. 02-10-00369-CV, 2013 WL 530969 (Tex. App.––Fort Worth

Feb. 14, 2013, no pet. h.) (Bradshaw II). 2 Betty Lou Bradshaw, the owner of a

nonparticipating royalty interest (NPRI) in real property, sued Steadfast Financial,

L.L.C., Range Production I, L.P., and others, including Bennis, claiming that

Steadfast––the owner of the mineral estate subject to Bradshaw’s NPRI and

holder of the executive right––breached a fiduciary duty to her by agreeing to a

1/8 royalty rather than a 1/4 royalty in an oil and gas lease with Range. Id. at *1.

One of the remedies she claimed was a constructive trust upon all accrued

royalties paid to other royalty holders––whom she had also named in the suit and

of whom Bennis was one––and all future royalty payments to those royalty

holders.   Id. at *2.     The trial court granted summary judgment for all of the

defendants and rendered a judgment that Bradshaw take nothing on all of her

claims. Id. Bradshaw appealed the judgment on October 18, 2010.

      On December 6, 2010, Range filed an original petition in interpleader,

seeking to interplead into the court’s registry all of the past royalty payments due

Bennis     and   CBC. 3      Bradshaw answered the interpleader motion on

December 21, 2010, claiming that the trial court had been deprived of jurisdiction


      2
       We have previously referred to that case as Bradshaw II in Bradshaw v.
Sikes, No. 02-11-00169-CV, 2013 WL 978782 (Tex. App.––Fort Worth
Mar. 14, 2013, no pet. h.) (mem. op.).
      3
      CBC was not a party to Bradshaw II. Bennis executed an Assignment of
Production Payment to CBC after Bradshaw filed her original petition in
Bradshaw II.


                                          2
over         the   interpleader   by   the   pending   appeal   in   Bradshaw   II.

On February 3, 2011, the trial court rendered an order authorizing Range to

interplead the funds and releasing Range from any further liability as to those

funds.       That same day, Bradshaw filed a motion to abate distribution of the

interpleaded funds pending her appeal of the take-nothing judgment in Bradshaw

II; she also asked that Range be required to deposit future royalties due Bennis

and CBC into the court registry. The trial court denied the motion. 4

         Bradshaw moved to delay distribution of the interpleaded funds and to

supersede any distribution order pending the appeal and a final judgment in

Bradshaw II. Initially, the trial court verbally ordered a $1,000,000 supersedeas

bond, but the trial court later rendered an order reconsidering and denying a

supersedeas bond. Bennis then filed a motion for summary judgment, in which

he claimed ownership of the funds.           He also contended that the appeal in

Bradshaw II did not preclude distribution of the interpleaded funds and that

Bradshaw’s attempt to obtain the funds or supersede the interpleader action was,

in effect, attempted prejudgment garnishment. CBC joined Bennis’s motion.

         While that motion was pending, Bradshaw filed a petition for writ of

prohibition in this court seeking an order prohibiting the trial court from

distributing the funds pending the outcome of Bradshaw II; we denied relief. In re



         4
        The trial court also denied Bradshaw’s motion to dismiss the interpleader
action for want of jurisdiction.


                                             3
Bradshaw, No. 02-11-00514-CV, 2012 WL 10865, at *1 (Tex. App.––Fort Worth

Dec. 27, 2011, orig. proceeding) (mem. op.).

      Bradshaw then filed a cross-claim in the interpleader action against Bennis

and CBC seeking the interpleaded funds and claiming that she was entitled to

1/16 of the proceeds from final production under the lease between Steadfast

and Range and that her entitlement predated and was superior to any interest of

Bennis and CBC. The trial court granted summary judgment for Bennis and

CBC; the order granting summary judgment also ordered that all interpleaded

funds be released to them.        The trial court later signed a final judgment

incorporating the summary judgment order and also ordering that all future

royalties be paid directly to Bennis and CBC. The appeal of Bradshaw II was still

pending at this court when Bradshaw filed her notice of appeal in this case

number.

      We handed down an opinion in Bradshaw II on February 14, 2013.

Although we reversed the trial court’s summary judgment for Steadfast Financial,

Range, and most of the royalty holders, we affirmed the judgment as to Bennis.

Bradshaw II, 2013 WL 530969, at *26. In addition, we have affirmed the trial

court’s judgment in a separate interpleader action filed by Range, in which the

trial court ordered past due royalties to be distributed to the other royalty holders

sued in Bradshaw II. See Bradshaw v. Sikes, No. 02-11-00169-CV, 2013 WL

978782 (Tex. App.––Fort Worth March 14, 2013, no pet. h.) (mem. op.)

(Bradshaw III).


                                         4
                                 Issues on Appeal

      In her first issue, Bradshaw contends that the trial court erred by denying

her motion to dismiss and motion to abate because this court had exclusive

jurisdiction over the interpleaded funds pending the appeal in Bradshaw II. In her

second issue, she argues that even assuming the trial court had jurisdiction, it

erred by granting final summary judgment and distributing the interpleaded funds

to Bennis and CBC because Bennis’s claim is barred by res judicata and, further,

he did not establish his right to summary judgment as a matter of law. In her

third issue, she claims that in addition to reversing the trial court’s judgment, this

court should order Bennis and CBC to return all of the disputed royalty proceeds

received in accordance with the trial court’s order.

                                    Jurisdiction

      Bradshaw claims that the trial court’s distribution of the interpleaded funds

is inconsistent with the summary judgment in Bradshaw II because Bennis had

sought entitlement to and possession of the royalty proceeds in that case and

was denied relief. Bradshaw’s arguments in this first issue are almost identical to

the arguments that this court has already rejected in Bradshaw III. Id. at *3–4.

Bradshaw ignores the nature of the judgment in Bradshaw II, which was a take-

nothing judgment. Bennis did not file a cross or counterclaim in Bradshaw II; the

affirmative claims to the royalties that Bradshaw refers to were made by Bennis

in his motions for summary judgment and, thus, were not claims for affirmative

relief. See, e.g., Polansky v. Berenji, No. 03-11-00592-CV, 2012 WL 6097314, at


                                          5
*6 (Tex. App.––Austin Dec. 7, 2012, no pet.) (concluding that nonspecific request

for attorney’s fees in motion for summary judgment was not affirmative claim for

attorney’s fees); Life Forms, Inc. v. Woodlands Operating Co., 304 S.W.3d 591,

603 (Tex. App.––Beaumont 2010, pet. denied) (holding that motion for summary

judgment seeking only to avoid plaintiff’s claim did not seek affirmative relief).

Because Bennis was not seeking affirmative relief, the trial court did not reject

Bennis’s entitlement to the royalties in Bradshaw II; rather, it denied Bradshaw’s

claim for a constructive trust on those royalties. In other words, as we stated in

Bradshaw III, “[w]hen the trial court granted the final take-nothing judgment

against Bradshaw, incorporating its previous summary judgments for the Royalty

Holders [including Bennis], it essentially put the parties back into their original

positions at the litigation’s outset.” Bradshaw III, 2013 WL 978782, at *4. With

respect to Bennis, that position was a royalty interest pursuant to a deed.

Therefore, we conclude and hold that the trial court’s judgment in the interpleader

action is not inconsistent with its judgment for Bennis in Bradshaw II. See id. at

*3–4.

        Additionally, the trial court did not lack jurisdiction over the interpleader

action because of the pending appeal in Bradshaw II. Bradshaw contends that

the trial court lost plenary power over “the entire controversy,” which includes

“the disputed royalty proceeds,” and that by granting the interpleader and

distributing the proceeds, the trial court interfered with this court’s jurisdiction.

See, e.g., Ex parte Travis, 73 S.W.2d 487, 489 (Tex. 1934) (orig. proceeding)


                                          6
(reciting “general rule” that once appeal has been perfected, trial court loses

jurisdiction over matters that “trench upon the appellate functions”); Atkins v.

Snyder, 597 S.W.2d 779, 782 (Tex. App.––Fort Worth 1980, orig. proceeding)

(issuing writ of prohibition to prevent trial court’s actions from destroying subject

matter of appeal).

      The subject of the appeal in Bradshaw II was whether the litigation against

Range, Steadfast, and the royalty holders could proceed, not whether Bradshaw

had conclusively proved her right to a constructive trust on the royalties or any

other relief she had pled. Bradshaw II, 2013 WL 530969, at *5, *22, *24–25. The

trial court’s order granting the interpleader and subsequent judgment distributing

the interpleaded funds did not interfere with or moot our consideration of

Bradshaw II; in fact, we reversed part of the trial court’s judgment and remanded

the case for further proceedings. See Northshore Bank v. Commercial Credit

Corp., 668 S.W.2d 787, 790 (Tex. App.––Houston [14th Dist.] 1984, writ ref’d

n.r.e.) (holding that, interpleader being a creature of equity, trial court could have

ordered interpleaded funds erroneously awarded and distributed to Northshore to

be returned to the registry of the court). 5 Moreover, we affirmed the summary



      5
        Bradshaw recognizes this principle in her own brief and prays that this
court order the distributed funds to be repaid into the trial court’s registry. But
see AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506, 524 (Tex.
App.––Fort Worth 2009, no pet.) (holding that Northshore does not stand for the
proposition that a court of appeals may order a party to return funds to the trial
court’s registry).


                                          7
judgment for Bennis. We therefore conclude and hold that the pending appeal in

Bradshaw II did not deprive the trial court of jurisdiction over this case.

      Bradshaw further claims that the trial court erred by refusing to abate the

interpleader proceeding because she superseded the judgment in Bradshaw II.

Bradshaw provided a bond for the costs awarded the defendants in the take-

nothing judgment. The effect of a supersedeas bond is to suspend execution of

judgment, so the judgment creditor can look only to the bond for satisfaction of

the judgment. Fairways Offshore Exploration, Inc. v. Patterson Servs., Inc., 355

S.W.3d 296, 299–300 (Tex. App.––Houston [1st Dist.] 2011, order).             Only a

judgment debtor may supersede a judgment.                Tex. R. App. P. 24.1(a).

A “judgment debtor” is a person obligated to pay a money judgment. Tex. Fin.

Code Ann. § 301.002(a)(6) (West 2006); GuideOne Lloyd’s Ins. Co. v. First

Baptist Church of Bedford, 268 S.W.3d 822, 836 (Tex. App.––Fort Worth 2008,

no pet.) (op. on reh’g).

      Bradshaw was indebted by the judgment in Bradshaw II only for costs;

therefore, she properly superseded that part of the judgment. But the remainder

of the judgment was that she take nothing by her claims; thus, there was nothing

else she could supersede. See Bradshaw III, 2013 WL 978782, at *5 & n.12,

*6 n.13; In re City of Cresson, 245 S.W.3d 72, 74 (Tex. App.––Fort Worth 2008,

orig. proceeding) (“Supersedeas preserves the status quo of the matters in

litigation as they existed before the issuance of the order or judgment from which

an appeal is taken.”). Thus, the trial court was not prohibited from proceeding


                                          8
with the interpleader action by the filing of the supersedeas bond in Bradshaw II.

See Bradshaw III, 2013 WL 978782, at *5.

      We overrule Bradshaw’s first issue.

                       Distribution of Interpleaded Funds

      In her second issue, Bradshaw contends that the trial court erred by

granting Bennis’s motion for summary judgment, in which they claimed they were

entitled to the interpleaded funds as a matter of law, because their claims to the

royalties are barred by res judicata. According to Bradshaw, entitlement to the

royalties was already litigated in Bradshaw II, and the trial court denied Bennis

and CBC’s affirmative claims to the royalties. We have already rejected this

argument. See, supra, at 5–6. For the reasons set forth in Bradshaw III, we

likewise reject Bennis and CBC’s argument that Bradshaw does not have

standing to challenge the judgment in their favor.         Bradshaw III, 2013 WL

978782, at *3.

      Bradshaw further contends that Bennis and CBC did not establish their

entitlement to summary judgment as a matter of law. She argues that she has

never disputed that Bennis was granted a royalty interest in a deed from

Steadfast but that “[t]his fact alone . . . fails to conclusively establish Bennis’[s]

entitlement to the disputed proceeds from production under the subject oil and

gas lease.” She says that she raised a fact issue as to whether she was entitled

to a constructive trust on the proceeds of the oil and gas lease; therefore, Bennis

and CBC were not entitled to summary judgment.


                                          9
      After the trial court granted Range’s interpleader petition, Bennis filed a

motion for summary judgment seeking the interpleaded funds, which CBC joined.

They proferred as evidence the royalty deeds from Steadfast to Bennis, the

assignment from Bennis to CBC, and the take-nothing judgment for Bennis in

Bradshaw II.     Bradshaw proferred the same evidence she had previously

proferred in response to the summary judgment motion in Bradshaw II and

additional evidence showing that other contemporaneous oil and gas leases in

the area had granted a 1/4 royalty.

      The trial court had already resolved the constructive trust issue against

Bradshaw. That an appeal was pending on that issue in Bradshaw II was not

enough to raise a fact issue as to whether she was entitled to the royalty

payments; Bradshaw’s take-nothing judgment entitled her to nothing, and even

its partial reversal on appeal entitles her to nothing until she is able to prove the

claims on which she has presented some evidence. 6 See id. at *6. Accordingly,

we conclude and hold that Bennis and CBC conclusively proved their entitlement

to the interpleaded funds.



      6
       Bradshaw is, in effect, seeking to prevent dissipation of any royalty
payments pending trial; she has not yet obtained a trial court judgment in her
favor. A plaintiff seeking to protect its right to a potential judgment typically must
prove its entitlement to such relief via statute. See Alliance Royalties, LLC v.
Boothe, 313 S.W.3d 493, 497 (Tex. App.––Dallas 2010, no pet.) (citing Tex. Civ.
Prac. & Rem. Code Ann. §§ 61.001 (attachment), 62.001 (sequestration), 63.001
(garnishment), 64.001 (receivership) (West 2008)). Bradshaw has not pled or
proved her entitlement to any such statutory relief.


                                         10
      We overrule Bradshaw’s second issue.         Because her third issue is

contingent on her first and second issues being sustained, we also overrule her

third issue. See Tex. R. App. P. 47.1.

                                  Conclusion

      Having overruled Bradshaw’s dispositive issues, we affirm the trial court’s

judgment.




                                                 TERRIE LIVINGSTON
                                                 CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and GABRIEL, JJ.

DELIVERED: April 18, 2013




                                         11
