Affirmed and Majority and Concurring Opinions filed August 14, 2014.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00042-CV

                    CLAY EXPLORATION, INC., Appellant
                                         V.

                 SANTA ROSA OPERATING, LLC, Appellee

                     On Appeal from the 12th District Court
                            Grimes County, Texas
                        Trial Court Cause No. 28262-A

                      MAJORITY OPINION


       In this case, a receiver appointed under section 64.091 of the Civil Practice
and Remedies Code executed an oil and gas lease to appellant Clay Exploration,
Inc.   Clay appeals the trial court’s order denying its motion to confirm the
receiver’s lease and granting appellee Santa Rosa Operating, L.L.C.’s motion to set
aside the lease. Clay’s primary argument on appeal is that the trial court erred in
ruling that the receiver lacked authority to execute the lease to Clay. Based on the
limited authority granted in the order appointing the receiver, we hold the trial
court correctly ruled the receiver lacked authority to lease to Clay. We therefore
affirm the trial court’s order setting aside the lease.

                                        BACKGROUND

       In 1999, Marathon Oil Company filed a petition for appointment of a
receiver to lease mineral interests in five tracts of land. See Tex. Civ. Prac. &
Rem. Code Ann. § 64.091(b) (West Supp. 2014). These tracts included 102 acres
in Grimes County that Frederick Kastan and Gustav Heye purchased in 1889. 1 The
record shows that Kastan later left Texas and moved back to Berlin, Germany.

       Marathon requested a receiver “to take charge of and execute an oil, gas, and
mineral lease, or leases” on behalf of the defendant owners of the mineral interests,
including Fredrick Kastan or his unknown heirs. 2 Marathon alleged that it had
made a “thorough and diligent but unsuccessful effort” to locate the heirs.
Marathon also alleged that it owned a leasehold estate in the relevant tracts and
would be unable to drill, develop, pool, unitize, produce, and operate the mineral
interests if a receiver was not appointed.

       The trial court appointed Charles Ketchum to serve as receiver. The trial
court ordered that the receiver

       shall have the authority and is hereby authorized and directed to
       deliver a mineral lease, or leases, with pooling authority as provided
       1
         The surname “Kastan” is also spelled “Kaston” or “Kasten” in certain court documents.
Because affidavits from the alleged heirs indicate that the correct spelling is Kastan, we use that
spelling here.
       2
           The petition also requested that the receivership cover the mineral interests of
defendants Susie Feggins Henderson, Shirley June Sunday, David W. Acreman, Ollie Acreman,
Trudy Acreman Oliver, Ray Acreman, Willie James Creeks, Brenda P. Debose, Wilson E.
Debose, Jr., Debbie Ann Gaston, Kevin Hargrove, Betty Jean Hill, and Dorothy Marie Marks, or,
if any of those persons are deceased, their unknown heirs. Regarding the 102-acre tract at issue
here, the only interested defendant was Frederick Kastan or his unknown heirs.

                                                2
       by law, covering all the Defendants’ entire mineral interests, in, under
       and that may be produced from the respective tracts of land described
       on Exhibit “A,” unto Marathon Oil Company, which can be
       accomplished by executing a separate oil and gas lease to Marathon
       Oil Company covering each of the five (5) tracts of land described on
       Exhibit “A” or by executing an oil and gas lease covering one or more
       of said tracts; the Receiver is further authorized and shall have the
       power to enter into any unitization agreement which has been duly
       authorized by the Railroad Commission of Texas and to do all acts
       and have all powers provided for Receivers by the Statutes of the
       State of Texas.

(Emphasis added). The trial court further ordered that

       if the Receiver is successful in negotiating the sale, negotiation,
       execution and delivery of a mineral lease or leases covering
       Defendants’ entire mineral interest, the Receiver shall report the terms
       of such to this Court for confirmation or disallowance; that any
       money consideration negotiated by the Receiver for the execution of
       leases shall be paid to the Clerk of this Court and placed in the
       Registry of the Court, and after applying such money consideration to
       any costs that may have accrued, or may hereafter accrue, in this
       cause, the balance and any future payments shall be retained by the
       Clerk of this Court in the Registry of this Court . . . .
(Emphasis added). There is no evidence in the record that Marathon ever drilled a
well on the tracts. 3

       In 2011, both Clay and Santa Rosa sought to lease the mineral interests in
the 102 acres. Tayland Resources, LLC obtained leases from some of the non-
Kastan holders of mineral interests in the property using funds provided by Clay.
Santa Rosa filed a petition with a new cause number in November 2011, asking the
court to appoint a receiver to lease the minerals. Tayland Resources intervened

       3
           At trial, Clay’s lawyer represented to the court that Ketchum had executed a lease with
Marathon in 1999, which expired by its own terms three to five years later because no well was
drilled. Our record on appeal, however, does not contain a copy of that lease, or an order from
the trial court confirming it.

                                                3
and filed its own petition for appointment of a receiver; it later assigned its
interests in the leases to Clay. This new receivership action, to the extent it
remains live, is not at issue in this appeal.

       Clay also contacted the original receiver, Ketchum, who executed an oil and
gas lease in favor of Clay in January 2012. According to Clay, Ketchum also
“accepted the bonus money on behalf of the Unknown Kast[a]n Heirs,” and the
“money was deposited with the District Clerk as directed by the existing
receivership.” Ketchum died later that month.

       Santa Rosa filed a petition in intervention in the original Marathon
receivership action in April 2012.           Santa Rosa alleged that Ketchum was
authorized to enter into an oil and gas lease only with Marathon. Santa Rosa also
alleged that it had found the unknown Kastan heirs and obtained leases from
them. 4 Santa Rosa moved to set aside the receivership and to invalidate the
Ketchum–Clay oil and gas lease. Santa Rosa contended the lease was invalid
because (1) Clay “could not have obtained or proved its entitlement to take the oil
and gas lease from the Receiver since its counsel was informed that the Kast[a]n
heirs were no longer unknown,” and (2) the appointment order “provided that the
Receiver was to only make an oil and gas lease with Marathon.”

       The next day, Clay filed a motion in the Marathon action to confirm its lease
from Ketchum. Clay alleged that, although the “initial lease was to be negotiated
with Marathon . . . the [appointment] order did not prohibit, and in fact provided
for the receiver to enter into future leases for the benefit and protection of the
Unknown Kast[a]n Heirs.”

       4
          Santa Rosa attached to its petition a Memorandum of Lease from purported Kastan
heirs, signed by Irit Kroner Cohen and Tamar Kroner Cohen. Santa Rosa also introduced leases
signed by Klaus Kastan, Edith Kastan, Claudia V. Stuckard, Thomas Alexander Gutman, and
Shoshana Kroner.

                                             4
       After holding an evidentiary hearing, the trial court issued an order denying
Clay’s motion to confirm the lease, granting Santa Rosa’s motion in part, and
setting aside the Ketchum–Clay lease. The order did not specify the ground on
which the court set aside the lease, and it stated that the court was not resolving the
issues of dissolving the receivership or distributing funds on deposit to potential
heirs.5 Clay filed a motion to sever “the issue of the confirmation of the lease,”
and the trial court ordered the severance of all “claims related to the validity of
and/or confirmation of the Receiver’s oil and gas lease to Clay Exploration,”
resulting in a final, appealable order. This appeal followed.

                                         ANALYSIS

       On appeal, Clay raises three issues: (1) the trial court erroneously ruled that
the receiver lacked authority to execute the lease to Clay, and therefore erred in
setting aside the receiver’s lease; (2) the trial court abused its discretion in refusing
to confirm the receiver’s lease because—having erroneously ruled that the receiver
lacked authority—the trial court never reached the question whether the lease was
entered into through mistake, inadvertence, or improvidence; and (3) the trial court
abused its discretion in refusing to confirm the receiver’s lease because there was
no evidence that the receiver’s lease was entered into through mistake,
inadvertence, or improvidence. On the first issue, we hold that the receiver’s
authority to execute and deliver a lease extended only to Marathon, and therefore
the trial court did not err in setting aside the receiver’s lease to Clay. Because the
remaining issues regarding the trial court’s refusal to confirm the Ketchum–Clay
lease assume that the receiver had authority, we do not reach those issues.



       5
          The court subsequently appointed a substitute receiver subject to any previous orders
issued in the cause.

                                              5
I.     Standard of review

       Statutory construction and the legal effect of a court order are questions of
law that we determine de novo based on the plain language of the statute or order.
See F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007);
Shanks v. Treadway, 110 S.W.3d 444, 447–49 (Tex. 2003). When a trial court’s
judgment or order does not identify the grounds on which the trial court relied, we
will affirm the judgment on any grounds presented that fully support the
complained-of ruling. See City of Mont Belvieu v. Enter. Prods. Operating, LP,
222 S.W.3d 515, 518 (Tex. App.—Houston [14th Dist.] 2007, no pet.); Britton v.
Tex. Dep’t of Crim. Justice, 95 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.]
2002, no pet.).

II.    The trial court did not abuse its discretion in setting the Ketchum–Clay
       lease aside because, although the receivership continued, the receiver
       was not authorized to execute or deliver a lease to Clay.
       Because the trial court’s written order does not identify the grounds on
which it relied in denying Clay’s motion to confirm and granting Santa Rosa’s
motion to set aside the Ketchum–Clay lease, we may affirm based on either of the
two grounds Santa Rosa presented to the trial court. See, e.g., Carr v. Brasher, 776
S.W.2d 567, 569 (Tex. 1989). The parties’ briefs address both grounds, and either
ground, if correct, would support the trial court’s ruling.

       Taking its cue from certain oral comments by the trial court at the hearing,
Clay begins by contending that the court based its ruling on an incorrect
interpretation that a receivership under section 64.091 of the Civil Practice and
Remedies Code does not stay in effect beyond the expiration of the initial lease.6

       6
         The trial court commented that it relied on the entire record in ruling on the motions, but
that one of its beliefs was that the receivership did not stay in effect after the expiration of the
original lease except for the purpose of collecting and distributing funds. Although it is
                                                 6
Clay further contends that because the receivership was “in effect,” the receiver
was necessarily empowered to execute successive leases once the initial lease
expired. In Clay’s view, therefore, the trial court had discretion only to confirm
the lease, or to invalidate it solely for mistake, inadvertence, or improvidence.

       Although we agree with Clay that Santa Rosa failed to show the receivership
was no longer in effect at the time of the Ketchum–Clay lease, we disagree with
Clay’s interpretation of the authority granted to the receiver as a result of
Marathon’s petition. We hold the 1999 appointment order vested the receiver with
the authority to execute and deliver a lease or leases to Marathon—subject to
confirmation or disallowance—but did not confer the authority to execute and
deliver any number of leases, successive or otherwise, to any party at the receiver’s
discretion. Because this ground was presented to the trial court and fully supports
its ruling, we affirm its order setting aside the receiver’s successive lease to Clay.

       A.     Santa Rosa failed to show the receivership was no longer in effect
              at the time Ketchum signed the lease with Clay.
       In its motion to set aside the Ketchum–Clay lease, Santa Rosa first
contended the lease was invalid because the receiver was no longer entitled to
deliver an oil and gas lease given that “the Kast[a]n heirs were no longer
unknown.” We begin our analysis by addressing this ground because if Santa Rosa
were correct that the receivership was no longer in effect, it would be unnecessary
to address the scope of receiver Ketchum’s authority. We conclude that Santa
Rosa is incorrect, however, and hold that a claim of heirship communicated outside
the judicial process did not alone invalidate either the receivership or the lease.

       Section 64.091 gives trial courts discretion to “appoint a receiver for the

understandable Clay would choose to address this ground first, the court’s oral comments do not
change its written order. Richardson v. Johnson & Higgins of Tex., Inc., 905 S.W.2d 9, 11–12
(Tex. App.—Houston [1st Dist.] 1995, writ denied).

                                              7
mineral interest . . . owned by an absent defendant” in certain actions, including an
action “brought by a person claiming or owning . . . an undivided leasehold interest
under a mineral lease of land in [Texas] and that has one or more defendants who
have, claim, or own an undivided mineral interest in the same property.” Tex. Civ.
Prac. & Rem. Code Ann. § 64.091(b)(1). The plaintiff in such an action must
allege and prove that he “has made a diligent but unsuccessful effort to locate the
defendant” and “will suffer substantial damage or injury unless the receiver is
appointed.” Id. §64.091(c).

       The statute requires the receiver, “[a]s ordered by the court,” to
“immediately: (1) execute and deliver to a lessee or successive lessees mineral
leases on the outstanding undivided mineral interests; (2) execute and deliver to a
lessee or successive lessees an assignment of the outstanding undivided leasehold
interest; and (3) enter into a unitization agreement authorized by the Railroad
Commission of Texas.”         Id. §64.091(f)(1–3).     Once created, the receivership
“continues as long as the defendant or his heirs, assigns, or personal
representatives fail to appear in court in person or by agent or attorney to claim the
defendant’s interest.” Id. §64.091(e).

       Neither party disputes that the trial court’s 1999 order in the Marathon
action created a receivership for the undivided mineral interests in the 102 acres
owned by the unknown Kastan heirs. Although the statute does not explicitly
address how or when a receivership is dissolved, subsection (e) makes clear that it
continues at least until the heirs “appear in court . . . to claim [their] interest.” Id.

       Regardless of whether Clay or the receiver had notice outside the judicial
process that individuals were purporting to be the unknown Kastan heirs, the
record contains no evidence that the alleged heirs had made an appearance in court
to claim their interest before Ketchum executed the Clay lease in January 2012.

                                             8
Santa Rosa did allege in its April petition in intervention that it had located the
unknown Kastan heirs. We need not decide whether that filing amounted to an
appearance in court by the Kastan heirs to claim their interest, however, because
nothing in the statute indicates that such an appearance would dissolve the
receivership retroactively. Accordingly, we hold Santa Rosa failed to show the
receivership was no longer in effect when Ketchum executed the Clay lease, and
we turn to the question whether the receivership order authorized Ketchum to do
so.7

       B.      The 1999 appointment order limits the receiver’s authority to
               executing and delivering leases to Marathon.
       The second ground raised in Santa Rosa’s motion to set aside the Ketchum–
Clay lease was that the appointment order “provided that the Receiver was to only
make an oil and gas lease with Marathon.” In general, “[a] receiver has only that
authority conferred by the Court’s order appointing him.” Ex Parte Hodges, 625
S.W.2d 304, 306 (Tex. 1981). 8 We give effect to an order “in light of the literal
language used if that language is unambiguous.” Reiss v. Reiss, 118 S.W.3d 439,
441 (Tex. 2003) (internal quotation marks omitted); Haworth v. Haworth, 795
S.W.2d 296, 298 (Tex. App.—Houston [14th Dist.] 1990, no writ). Judicial orders
and judgments, “like other written instruments, are to be construed as a whole
toward the end of harmonizing and giving effect to all the court has written.”

       7
         In so holding, we need not and do not address whether the receivership is still in effect
today or whether it was in effect at the time of the trial court’s order setting aside the lease. Nor
do we address whether the receivership, if still in effect, should be dissolved—an issue still
pending before the trial court.
       8
          See also Baumgarten v. Frost, 186 S.W.2d 982, 987 (Tex. 1945) (“One dealing with a
receiver is charged with the knowledge of the law that the authority of the receiver is limited to
that given by the court.”); Kelly v. Kelly, 257 S.W. 992, 997 (Tex. Civ. App.—Dallas 1924)
(“The order of the court making the appointment properly limits the effect of same, as well as the
power and authority of the receiver under said appointment, to the possession, care, and control
of the property pending the litigation.”).

                                                 9
Constance v. Constance, 544 S.W.2d 659, 660 (Tex. 1976).

      As permitted by section 64.091, the trial court’s 1999 appointment order
“authorize[s] and direct[s]” the receiver “to deliver a mineral lease, or leases, with
pooling authority as provided by law, covering all the Defendants’ entire mineral
interests . . . unto Marathon Oil Company.”         (Emphasis added).      The order
provides that this direction “can be accomplished by [1] executing a separate oil
and gas lease to Marathon Oil Company covering each of the five . . . tracts of land
. . . or [2] by executing an oil and gas lease covering one or more of said tracts.”
Cf. Tex. Civ. Prac. & Rem. Code Ann. § 64.091(f)(1) (providing that, “[a]s ordered
by the court,” the receiver shall immediately “execute and deliver to a lessee . . .
mineral leases on the outstanding undivided mineral interest”). If the receiver
successfully negotiated, executed, and delivered the lease or leases, the order
required him to “report the terms of such to this Court for confirmation or
disallowance.”

      The Ketchum–Clay lease, which covers only one of the five original tracts,
does not fall within these authorized categories of leases. To make a valid lease to
Marathon, the only additional step required by the 1999 appointment order was for
the court to confirm the lease executed and delivered by the receiver. But nothing
in the order purports to grant the receiver authority to execute and deliver a mineral
lease to any party except Marathon.           Thus, absent an amendment to the
appointment order granting the receiver the additional authority to lease to another
party, the receiver lacks authority to execute and deliver a lease to Clay. Cf. Ex
Parte Hodges, 625 S.W.2d at 306; Baumgarten, 186 S.W.at 987.

      Clay relies on its counsel’s representation that Ketchum entered into a lease
with Marathon, and casts itself as a “successive lessee” to whom Ketchum was
authorized to execute and deliver a subsequent lease.          But Clay’s focus on

                                         10
language in subsection (f) of section 64.091 that “the receiver shall immediately”
execute and deliver a lease or successive lease ignores the immediately preceding
limitation: “[a]s ordered by the court.” Tex. Civ. Prac. & Rem. Code Ann. §
64.091(f). Aside from the lack of evidence in our record as to the execution,
delivery, and confirmation of a lease of the Kastan heirs’ interests to Marathon, or
the expiration of that lease, the 1999 appointment order does not address the
receiver’s authority to execute or deliver successive leases.

       Clay also contends that because the order further authorizes the receiver “to
enter into any unitization agreement which has been duly authorized by the
Railroad Commission of Texas and to do all acts and have all powers provided for
Receivers by the Statutes of the State of Texas,” the receiver was empowered to
enter into successive leases. Although the power to enter into successive leases is
one contemplated by the statute, see id. § 64.091(f)(2), construing “do all acts and
have all powers provided for Receivers” as providing the maximum authority
permitted under the statute would render superfluous the rest of that paragraph of
the trial court’s order—which grants only the power to execute and deliver a single
lease or set of leases, and only to Marathon. But see Constance, 544 S.W.2d at 660
(“Judgments, like other written instruments, are to be construed as a whole toward
the end of harmonizing and giving effect to all the court has written.”); cf. Scott v.
Sampson, 333 S.W.2d 220, 222 (Tex. Civ. App.—Fort Worth 1960, writ ref’d
n.r.e.) (holding court did not abuse its discretion under predecessor statute in
directing receiver to execute lease to particular lessee).

       Nor does the trial court’s power to grant such limited discretion to the
receiver defeat the purpose of the statute, as Clay contends.9 Although we agree

       9
          At any rate, even if the 1999 appointment order’s restricted scope of authority did
frustrate a statutory purpose, it would not follow that the receiver was granted all powers that
would effectuate that purpose despite the order’s limitations. Cf. Shanks, 110 S.W.3d at 447
                                              11
with Clay that the statutory purpose of mineral receiverships is “to encourage the
exploration and development of minerals,” Tex. Civ. Prac. & Rem. Code Ann.
§ 64.091(a), the statute also limits the receiver’s authority to execute and deliver
leases to the authority “ordered by the court.” Id. § 64.091(f). Thus, the plain
language of the statute indicates the Legislature’s determination that the
exploration and development of minerals is served by providing the court with
discretion regarding whether to grant authority to a receiver, and to what extent.
See id.; see also id. § 64.091(b) (“a district court may appoint a receiver”
(emphasis added)).

       Because the 1999 appointment order did not grant the receiver authority to
execute and deliver a lease—successive or otherwise—to any entity except
Marathon, we hold Ketchum lacked the authority to execute and deliver a lease to
Clay. We overrule Clay’s first issue.

                                        *      *       *

       Although our concurring colleague agrees with this analysis of Santa Rosa’s
second ground regarding the scope of the receiver’s authority, she contends that we
should not have addressed Santa Rosa’s first ground regarding the existence of the
receivership at the time of the Ketchum–Clay lease, arguing that our discussion of
that ground in Part II.A. above is advisory and violates the principle of judicial
restraint. We disagree.

       “The distinctive feature of an advisory opinion is that it decides an abstract
question of law without binding the parties.” Tex. Ass’n of Bus v. Tex. Air Control

(“[W]e must interpret the decree to determine not what the trial court should have done but, if
possible, what the trial court actually did.”); Bailey v. Amaya Clinic, Inc., 402 S.W.3d 355, 372
(Tex. App.—Houston [14th Dist.] 2013, no pet.) (“The language in the Order is unambiguous;
therefore, this court must interpret the Order as having the effect required by the Order’s plain
language, even if this effect is contrary to the result required under applicable law.”).

                                               12
Bd., 852 S.W.2d 440, 444 (Tex. 1993). Our holding regarding the receivership’s
existence at the time of the lease is far from abstract or non-binding. As noted
above, the non-existence of the receivership was raised below as a ground for
setting aside the lease, the trial court commented on it at the hearing, and the
parties have briefed it here. If correct, it would provide an independently sufficient
basis for the court’s order setting aside the lease—indeed, it would allow us to
avoid addressing the scope of the receiver’s authority.

      Moreover, addressing the existence of the receivership promotes judicial
economy because it affects matters that remain pending before the trial court. We
acknowledge the rule providing that our opinions must be “as brief as practicable
but . . . address[] every issue raised and necessary to final disposition of the
appeal,” Tex. R. App. P. 47.1, as well as the general principle of restraint that a
court faced with both constitutional and non-constitutional grounds for deciding a
case should rest its decision on the non-constitutional ground, deciding no more
than necessary. 10 But the Supreme Court of Texas, this Court, and many others
have recognized that these considerations may be trumped in non-constitutional
cases by the principle of judicial economy, which gives appellate courts discretion
to address other possible grounds for the decision under review. E.g., Edinburgh
Hosp. Auth. v. Trevino, 941 S.W.2d 76, 81 (Tex. 1997) (addressing issue not
essential to disposition of appeal to provide trial court with guidance); Cincinnati
Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996) (“the appellate court may
consider other grounds that the movant preserved for review and trial court did not
rule on in the interest of judicial economy”); Wichita County, Tex. v. Hart, 917
S.W.2d 779, 780 (Tex. 1996); Lone Star Gas Co. v. R.R. Comm’n, 767 S.W.2d
709, 711 (Tex. 1989) (per curiam) (observing that although rules “do not require or

      10
           VanDevender v. Woods, 222 S.W.3d 430, 432–33 (Tex. 2007).

                                             13
contemplate advisory opinions on issues not essential to the final disposition of a
case,” courts must also give “full consideration of all issues raised to move the case
as far as possible toward final disposition”). 11

       Here, addressing the existence of the receivership at the time of the
Ketchum–Clay lease will provide guidance to the trial court and the parties in
resolving multiple live disputes. For example, the existence of the receivership is
relevant to the pending request to dissolve the receivership and distribute funds, as
well as to Santa Rosa’s allegation that Clay is liable for exemplary damages
because it clouded Santa Rosa’s title by taking a lease from Ketchum knowing that
the Kastan heirs’ existence made that lease invalid. 12 Because we can decide now
whether the receivership still existed in January 2012 (a decision that had the
potential to resolve this appeal fully), we see no point in condemning the parties to
waste their time and money—and the trial court and (if appealed) this Court to
waste scarce public resources—on arguing and considering that question again.
We have therefore exercised our discretion to decide the question now in the
interest of judicial economy.


       11
          See also, e.g., Houston Chronicle Pub. Co. v. McMaster, 598 S.W.2d 864, 867 (Tex.
Crim. App. 1980); Shafighi v. Tex. Farmers Ins. Co., No. 14-12-00082-CV, 2013 WL 1803609,
at *5 (Tex. App.—Houston [14th Dist.] Apr. 30, 2013, no pet.) (mem. op.); In re I.E.F., 345
S.W.3d 637, 639 (Tex. App.—San Antonio 2011, orig. proceeding); Dallas/Fort Worth Int’l
Airport Bd. v. Ass’n of Taxicab Operators, 335 S.W.3d 361, 366 (Tex. App.—Dallas 2010, no
pet.); Diamond Offshore Drilling v. Advanced Indus. & Marine Servs., Inc., No. 14-00-00087-
CV, 2002 WL 1411068, at *5 & n.18 (Tex. App.—Houston [14th Dist.] June 27, 2002, no pet.)
(not designated for publication); Boales v. Brighton Builders, Inc., 29 S.W.3d 159, 165 (Tex.
App.—Houston [14th Dist.] 2000, pet. denied).
       12
           The concurring opinion expresses concern that Tayland Resources filed a separate
petition for a new receivership that could be impacted by our decision even though Tayland
Resources is not participating as a party to this appeal. As noted above, however, Tayland
Resources assigned its leases to Clay, who is a party here. In addition, it is not clear whether
Clay is pursuing Tayland Resources’ petition given that a substitute receiver has been appointed
in the original Marathon receivership action.

                                              14
                                  CONCLUSION

     For these reasons, we affirm the trial court’s order setting aside the
Ketchum–Clay lease.



                            /s/            J. Brett Busby
                                           Justice


Panel consists of Justices McCally, Busby, and Donovan (McCally, J.,
Concurring).




                                      15
