                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo
                              ________________________

                                   No. 07-14-00062-CV
                              ________________________

                        RICHARD D. CRAWFORD, APPELLANT

                                             V.

                             XTO ENERGY, INC., APPELLEE



                           On Appeal from the 96th District Court
                                   Tarrant County, Texas
             Trial Court No. 096-262638-12, Honorable R. H. Wallace, Presiding


                                       January 7, 2015

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

       This case involves the construction of Rule 39(b) of the Texas Rules of Civil

Procedure as it pertains to the equitable authority of a trial court to dismiss a lawsuit due

to the absence of an “indispensable” party. In this breach of contract and declaratory

judgment cause of action, the trial court determined that forty-four strangers to the

contract at issue were indispensable, thereby ultimately resulting in the dismissal of
Appellant’s claims when he failed to join those persons.                 The majority affirms the

decision of the trial court.


       As a point of beginning, I agree with the majority that we must review a trial

court’s decision regarding the joinder of parties pursuant to Rule 39(a) under an abuse

of discretion standard. Kodiak Res. Inc. v. Smith, 361 S.W.3d 246, 248 (Tex. App.—

Beaumont 2012, no pet.). I further agree that when reviewing matters committed to the

trial court’s discretion, a court of appeals may not substitute its judgment for that of the

trial court.    Bowie Memorial Hospital v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).

Therefore, while I might personally disagree with the trial court’s decision that the

additional parties were needed for a just adjudication under Rule 39(a), I acknowledge

that the trial court did not abuse its discretion in ordering their joinder. Those

concessions notwithstanding, where I part from the majority is in its implied

determination that those parties were “indispensable” within the meaning of Rule 39(b)

and the trial court did not abuse its discretion by dismissing Appellant’s case for the

failure to join those parties.1     Because I believe the trial court abused its discretion by

unjustly placing the burden of joining those parties on Appellant, leading to the dismissal

of his claims and thereby bringing about an unjust result, I respectfully dissent.


       As the majority states, the underlying facts of this controversy are not contested.

Prior to 1964, Mary Ruth Crawford owned fee simple title to the 8.235 acres of land at

issue in this case. In 1964, she conveyed the surface of that property to Texas Electric

Service Company, reserving unto herself 100 percent of the oil, gas and other minerals.


       1
         Dismissal is a harsh remedy and courts should not dismiss an action unless “in equity and good
conscience” the “absent person [is] regarded as indispensable.” See TEX. R. CIV. P. 39(b).

                                                  2
In 2007, Ms. Crawford, leased those minerals to Hollis R. Sullivan, Inc., XTO’s

predecessor-in-interest. Subsequently, Ms. Crawford died, leaving her estate to her

son, Richard D. Crawford, Appellant herein.         Appellant subsequently ratified the

assigned oil and gas lease on the disputed property.


       At or about the same time XTO acquired its interest in the disputed property from

Hollis R. Sullivan, Inc., it also secured oil and gas leases from adjacent property

owners.    The oil and gas lease on the disputed 8.235 acres contained a pooling

provision, and pursuant to that provision, XTO pooled the Crawford lease with leases

from the adjacent properties to form the Eden Southwest Unit. On June 14, 2009, the

Eden Southwest Unit 1H well was completed.          Once the well was connected to a

gathering system and production began, XTO secured from Appellant a division order

pertaining to that pooled unit.


       Subsequent thereto, without any adverse claims having been asserted by the

adjacent property owners, XTO decided to not pay Appellant the royalties from the

disputed property and, instead, decided to pay those royalties to the adjacent property

owners under the theory that they were the rightful owners pursuant to the property title

concept of strips and gores. When Appellant filed suit asserting causes of action for

breach of his lease agreement, conversion and declaratory relief to remove the cloud

from his title, XTO filed a motion to compel joinder of the adjacent property owners.

See TEX. R. CIV. P. 39(a). The trial court then entered an order compelling the joinder of

forty-four adjacent property owners. When Appellant did not join those parties, the trial

court entered an order dismissing his causes of action. See TEX. R. CIV. P. 39(b).



                                            3
      It should be noted that none of the adjacent property owners have made any

legal claim of ownership to the disputed property and there is no claim or dispute

pending between Appellant and any of those property owners. The question concerning

the application of the doctrine of strips and gores is one wholly created and caused by

XTO and its conduct alone. Furthermore, there are no live claims pending which would

prevent the trial court from rendering complete relief as between XTO and Appellant.


      Rule 39 of the Texas Rules of Civil Procedure, governing the joinder of additional

parties, is an equitable rule intended to shield parties from inconsistent judgments and

obviate the necessity of multiple lawsuits. Here, contrary to the general rule that a party

has no standing to argue the interest of someone other than itself, XTO is arguing the

interest of the adjacent property owners. See Torrington Co. v. Stutzman, 46 S.W.3d

829, 843 (Tex. 2000) (holding that Texas courts have long held that a party may not

complain of matters that do not injuriously affect it or that merely affect the rights of

others). By seeking to compel Appellant to add parties who are not indispensable to the

claims being asserted, XTO is using the joinder rule as a sword rather than a shield.

Compelling joinder under these circumstances acts to unjustly discourage Appellant

from asserting his contractual claims by promoting complex and expensive litigation

while fostering claims that adjacent property owners are not even asserting. Insofar as

the interests of the adjacent property owners are concerned, simple reasoning dictates

that in moving for their joinder, XTO was either (1) engaging in a procedural maneuver

with the objective of causing expense and inconvenience to its opponent or (2) sincerely

advocating the interest of the adjacent property owners. If the motives were of the

former class, the trial court should have denied the motion and entered necessary


                                            4
orders to discourage such gamesmanship. If the motivation was of the latter class, it

follows that XTO could have contacted the adjacent property owners and encouraged

them to intervene or it could have joined them itself in order to advocate the theory it

claims to be applicable.2


       Because the adjacent property owners are not indispensable to the claims being

asserted by Appellant, before resorting to the harsh and inequitable remedy of

dismissal, the trial court should have either denied the motion to join them as additional

parties or it should have placed the burden of their joinder on the party asserting their

interest. Because the trial court failed to do so, it abused its discretion by dismissing

Appellant’s claims for the failure to join those parties. Accordingly, I would reverse and

remand with instructions that the trial court either proceed without the joinder of the

adjacent property owners or that it order XTO to join the parties it deems necessary to

its theory of the case.




                                                              Patrick A. Pirtle
                                                                  Justice




       2
          Responsive to Chief Justice Quinn’s Concurring Opinion, I would argue that it is XTO, not
Appellant, who seeks to take away another party’s property interest. With due credit to Lady Answerall
from Jonathan Swift’s political satire Polite Conversation, XTO cannot have its pie and eat it too.

                                                  5
