                                   NO. 07-10-0001-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                    FEBRUARY 4, 2010

                          ______________________________


                        IN RE ROBERT PAT WHITEAKER AND
                       WHITEAKER RANCHES, INC., RELATORS

                        _________________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                  ORDER ON PETITION FOR WRIT OF MANDAMUS


       Relators, Robert Pat Whiteaker and Whiteaker Ranches, Inc., (hereinafter

collectively referred to as Relators) filed a petition for writ of mandamus alleging an abuse

of discretion by the trial court in the signing of an order dated January 4, 2010, approving

the sale of receivership property and authorizing and directing the Receiver, Wayne

Cogdill, to complete the sale pursuant to the terms of a certain Farm and Ranch Purchase

Contract between Whiteaker Family Ranches Limited Partnership, as seller, and Doug

Lathem, as buyer, (hereinafter referred to as the Lathem Contract).            We granted

Relators’ emergency motion for temporary relief and stayed the enforcement of that order
pending disposition of the original petition.        For the reasons stated below, we

conditionally grant mandamus relief.


                                       Background


         The underlying proceeding was originally initiated on March 29, 2007, when

Martha Lane Clark, Debra Carol Horn, Travis Wayne Horn, Travis Lee Parker, Otis

Brandon Parker, and Monica Carol Randall (hereinafter referred to as Plaintiffs), filed

their original petition seeking the appointment of a receiver pertaining to the assets of

Whiteaker Family Ranches Limited Partnership. Relator, Whiteaker Ranches, Inc., is

the general partner of the Whiteaker Family Ranches Limited Partnership and Relator,

Robert Patrick Whiteaker, is president of the general partner. Together, Plaintiffs and

Relators make up the entire ownership of the limited partnership. The primary asset of

the limited partnership was, and is, a family farm and ranch located in Hartley County,

Texas.


       On July 20, 2007, the trial court entered an order appointing Wayne Cogdill as

receiver. Pursuant to that order, Cogdill was authorized, subject to his qualification and

control of the court, to do any and all acts necessary to the proper and lawful conduct of

the receivership. Pursuant to that authority, on September 30, 2008, Cogdill participated

in the execution of a lease agreement between Whiteaker Family Ranches Limited

Partnership, as lessor, and Kevin and Kay Spielman, d/b/a Kevin Spielman Cattle Co., as

lessee, pertaining to the property of the limited partnership.

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       Thereafter, the Lathem Contract was negotiated, and on June 9, 2009, the

contract was signed by Doug Lathem as buyer. The contract was not signed by the

general partner, Whiteaker Ranches, Inc., or by its principal, Robert Patrick Whiteaker,

nor was it signed by the Receiver. It was, however, signed by the limited partners, Debra

Whiteaker Horn and Martha Lane Clark.


       On July 29, 2009, Plaintiffs filed their Motion to Authorize Sale of Property,

requesting the trial court to authorize the Receiver to sign the contract on behalf of the

limited partnership. At a hearing conducted September 14, 2009, the trial court orally

announced its decision to authorize the sale in accordance with the Lathem Contract.

On September 24, 2009, prior to the entry of a written order to that effect, by agreement of

the parties, Plaintiffs’ motion was withdrawn and the trial court entered an order denying

the relief requested “as moot.”


       Four days later, on September 28, 2009, Doug Lathem attempted to intervene into

this proceeding by filing his Plea in Intervention.     By that pleading, Lathem sought

specific performance of the contract, together with monetary damages. On October 8,

2009, Lathem filed a motion seeking to have the trial court set aside its September 24,

2009 order denying Plaintiffs’ request to authorize the Receiver to sign the contract on

behalf of the limited partnership. In response to that motion, both Plaintiffs and Relators

moved to strike Lathem’s attempt to intervene in the receivership proceeding.           On

December 7, 2009, the trial court advised the parties that the motions to strike Lathem’s


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petition in intervention were denied and ordered the “prior ruling of the Court approving

the sale by the Receiver should be reinstated.” On the same day, the trial court signed

an order vacating its order of September 24, 2009. Thereafter, on January 4, 2010, the

trial court entered an order approving the Lathem Contract, amending certain dates within

the contract, and ordering the Receiver to complete the sale pursuant to the terms of that

contract.


       On January 7, 2010, this Court granted Relators’ motion for emergency relief and

stayed enforcement of the trial court’s order of January 4, 2010, pending disposition of

this mandamus proceeding. This Court further ordered all parties to file a response to

the petition for writ of mandamus by January 18, 2010. That deadline was later extended

to January 25, 2010. Pursuant to this Court's order, Plaintiffs timely filed a response

wherein they agreed that the relief being sought by Relators was appropriate. Lathem

filed a response on January 27, 2010, contending this Court lacks authority to address

complaints concerning his standing and the adequacy of the notice to be given under the

terms of the Spielman lease. Lathem also contends the trial court did not abuse its

discretion in entering the January 4, 2010 order. Notwithstanding the order of this Court,

the Receiver did not favor us with a response.


                           Mandamus Standard of Review


       AMandamus issues only to correct a clear abuse of discretion or the violation of a

duty imposed by law when there is no other adequate remedy by law.@ Walker v. Packer,

                                                 4
827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding), quoting Johnson v. Fourth Court of

Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding).


       Generally, an appellate court may not grant mandamus relief where resolution of a

fact issue underlies the trial court=s decision. Mendoza v. Eight Court of Appeals, 795

S.W.2d 712, 714 (Tex. 1990) (recognizing that an appellate court may not deal with

disputed issues of fact via a mandamus proceeding). However, where there are no

disputed fact issues relevant to the decision, mandamus will lie if the trial court abuses its

discretion by misapplying controlling legal principles to uncontroverted facts.         In re

Ferguson, 172 S.W.3d 122 (Tex.App.BBeaumont 2005, orig. proceeding).


                                        Discussion


       The Order Appointing Receiver, dated July 11, 2007, did not authorize the

Receiver to sell the assets of the receivership estate. Therefore, Court approval was

required before the Receiver could enter into a contract for the sale of the primary asset of

the receivership.   Although the Receiver never sought Court approval, Plaintiffs did

initiate proceedings wherein they requested the Court to authorize the Receiver to sign

the Lathem Contract.      Rather than grant that request (i.e., to simply authorize the

Receiver to enter into a contract) the trial court announced its decision to order "the sale

in accordance with the Lathem contract." That order was rendered moot when, by

agreement of the parties, the trial court entered its order acknowledging withdrawal of

Plaintiffs' motion. Lathem then sought to revive the trial court's approval of the sale by
                                                  5
attempting to intervene. The underlying issue then is whether Lathem had the right to

intervene into this receivership proceeding in general, and/or that portion of the

receivership proceeding pertaining to Plaintiffs’ motion to authorize the sale of the

receivership property.


       We will first address the more specific question: Was Lathem authorized to

intervene into that portion of the underlying proceeding pertaining to Plaintiffs’ Motion to

Authorize Sale of Property? Generally, a plea in intervention must be filed before an

order is rendered. In re Barrett, 149 S.W.3d 275, 279 (Tex.App.--Tyler, 2004, no writ).

For purposes of precluding intervention, an order is final if it disposes of every pending

claim and party. Hisaw & Associates Gen. Contractors, Inc. v. Cornerstone Concrete

Sys. Inc, 115 S.W.3d 16, 21 (Tex.App.--Fort Worth, 2003, pet. denied). Although the

Plaintiff's Motion to Authorize Sale of Property was filed bearing the same cause number

as the original receivership proceeding, that proceeding was a separate and distinct

cause of action ancillary to, and independent of, the general receivership proceeding.

Ferrell v. Ertel, 94 S.W.2d 827 (Tex.Civ.App.--Fort Worth 1936, no writ). As such, the

September 14, 2009, order reciting withdrawal of that motion and denying relief, disposed

of every pending claim and party sufficient to preclude intervention into that portion of the

proceeding pertaining to Plaintiffs’ Motion to Authorize Sale of Property. Accordingly,

Lathem's attempt to revive that proceeding by intervening was untimely and the trial court

erred in not granting both Plaintiffs' and Relators' motions to strike Lathem's petition in

intervention.   As such, the trial court misapplied controlling legal principles to
                                                 6
uncontroverted facts by granting Lathem the relief he requested, to-wit: vacation of its

order of September 14, 2009.


       Having determined that Lathem was not authorized to intervene into the ancillary

proceeding pertaining to the motion seeking to authorize the Receiver to sign the Lathem

Contract, we now turn to the question of whether he was authorized to intervene into the

general receivership proceeding.


       The basis of Lathem’s intervention in the receivership proceeding is his contention

that he has a contract to purchase receivership property - a contention that is disputed by

both Plaintiffs and Relators.    By his petition in intervention, Lathem seeks specific

performance of the contract and the recovery of actual damages. While that interest

might constitute a justiciable interest sufficient to warrant intervening into the general

receivership proceeding, it does not form a basis upon which the trial court can summarily

resolve contested issues pertaining to the validity and enforceability of that contract. To

the extent that the trial court concluded that the Lathem Contract was subject to specific

performance without first addressing issues pertaining to its execution and enforceability,

it failed to afford both Plaintiffs and Relators due process of law. Southern Bag & Burlap

Co. v. Boyd, 120 Tex. 418 (Tex. 1931) (writ of mandamus may issue to correct order

constituting the taking of relator's property and valuable property rights without due

process of law). Accordingly, the trial court also misapplied controlling legal principles by




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granting Lathem’s request to order specific performance of the Lathem Contract and by

entering its order of January 4, 2010.


                                         Conclusion


       Because Relators do not have an adequate remedy at law, we conditionally grant

the mandamus relief requested. We trust that Judge Enns will vacate his order of

December 7, 2009, vacating his prior order denying Plaintiffs’ motion to authorize the sale

of that property, thereby reinstating his order of September 24, 2009, and vacate his order

of January 4, 2010, ordering the Receiver to sell the property in question. The writ will

issue only if he fails to do so.



                                                 Patrick A. Pirtle
                                                     Justice




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