                                                                            ACCEPTED
                                                                         12-14-250-cv
                                                           TWELFTH COURT OF APPEALS
                                                                        TYLER, TEXAS
                                                                  1/13/2015 1:47:20 PM
                                                                          CATHY LUSK
                                                                                CLERK

                  CAUSE NO. 12-14-00250-CV

                        IN THE                         FILED IN
                                                12th COURT OF APPEALS
                  COURT OF APPEALS                   TYLER, TEXAS
               TWELFTH COURT OF APPEALS         1/13/2015 1:47:20 PM
                     TYLER, TEXAS                    CATHY S. LUSK
                                                         Clerk


LARRY LONG AND WOODBINE PRODUCTION CORPORATION,
                                     Appellants

                              V.

              MIKEN OIL, INC. and MIKE TATE,
                                                 Appellees
______________________________________________________________

                       On Appeal from the
                   th
                   4 Judicial District Court of
                       Rusk County, Texas
           The Honorable J. Clay Gossett, Presiding Judge
______________________________________________________________

   BRIEF OF APPELLEES MIKEN OIL, INC. and MIKE TATE

                            Deborah J. Race
                            Texas Bar No. 16448700
                            IRELAND, CARROLL & KELLEY, P.C.
                            6101 S. Broadway, Suite 500
                            Tyler, Texas 75703
                            Drace@icklaw.com
                            Tel: (903) 561-1600
                            Fax: (903) 581-1071

                            ATTORNEY FOR APPELLEES


               ORAL ARGUMENT REQUESTED
                  IDENTITY OF PARTIES AND COUNSEL

       Pursuant to Tex. R. App. P. 52.3(a), the following is a complete list of all
parties and the names and addresses of all counsel.


Appellants:                           Larry T. Long
                                      Woodbine Production Corporation

Appellate Counsel:                    F. Franklin Honea
                                      frank@honealaw.com
                                      The Law Offices of F. Franklin Honea
                                      5949 Sherry Lane, Suite 1700
                                      Dallas, Texas 75225

Trial Counsel:                        Ron Adkison
                                      ron@adkisonlawfirm.com
                                      The Adkison Law Firm
                                      300 W. Main Street
                                      Henderson, Texas 75652-3109

                                      Brent Bull
                                      Bull & Barrett, LLP
                                      Energy Centre
                                      1127 Judson Road, Suite 120
                                      Longview, Texas 75601

Appellees:                            Miken Oil, Inc.
                                      Mike Tate

Appellate Counsel:                    Deborah J. Race
                                      Drace@icklaw.com
                                      Ireland, Carroll & Kelley, P.C.
                                      6101 S. Broadway, Suite 500
                                      Tyler, Texas 75703


                                        ii
Trial Counsel:   Charles H. Clark
                 CHC@charlesclarklaw.com
                 Law Offices of Charles H. Clark
                 P. O. Box 98
                 Tyler, Texas 75710

                 Bruce A. Smith
                 Ward & Smith
                 P. O. Box 1231
                 Longview, Texas 75606-1231

                 Clay Wilder
                 cwilder@suddenlinkmail.com
                 Wilder & Wilder, P.C.
                 200 North Main Street
                 P. O. Box 1108
                 Henderson, Texas 75653-1108




                   iii
                                          TABLE OF CONTENTS


Identity of Parties and Counsel .............................................................................. ii

Table of Contentents ............................................................................................... iv

Index of Authorities ............................................................................................. vii

Statement Regarding Oral Argument......................................................................xii

Reply Issues ............................................................................................................xii

Statement of Facts ...................................................................................................1

Summary of the Argument .................................................................................... 13

Argument and Authorities ..................................................................................... 19

         Reply to Issue 1 .......................................................................................... 19

         The Court had jurisdiction and “prudential power” to order the mineral
         interests sold and the proceeds partitioned as requested by both sides.

         Reply to Issue 2 .......................................................................................... 29

         Tate and Miken Oil properly pled an action in partition of these mineral
         interests under Rule 756 and the court was correct to deny Long and
         Woodbine’s special exceptions on this ground.

         Reply to Issues 3, 4 and 5 ..................................................................... 32, 33

         There was sufficient evidence to support the trial court’s order.

                   Reply to Issue 3

                   The court correctly ordered the mineral interests jointly owned by the
                   parties sold as requested by both sides. It was undisputed that Tate
                   and Miken owned an interest and the order correctly reflected that it
                   was partitioning all of the property jointly owned by the parties.


                                                            iv
         Reply to Issue 4

         There was sufficient evidence to support the court’s order as to Tate
         and Miken.

         Reply to Issue 5

         Long and Woodbine pled and stipulated that the mineral interests
         were not subject to partition in kind and agreed that they should be
         sold.

Reply to Issue 6 .......................................................................................... 37

         The court properly appointed a qualified receiver to handle the sale of
         the jointly owned mineral interests.

Reply to Issues 7 and 8 ............................................................................... 40

         Reply to Issue 7

         The court proceeded properly and the parties stipulated that no issues
         would be waived pending the second phase of the partition
         proceeding.

         Reply to Issue 8

         The court entered its order after conducting a proper hearing with all
         parties and after the parties agreed on the record that the interests be
         sold and the money deposited into the registry of the court; further,
         the court and the parties agreed on the record that Long and Woodbine
         were not waiving any claims for contribution.

Reply to Issue 9 ......................................................................................... 46

         The court conducted a proper hearing with all parties before entering
         the order

                                                 v
Conclusion and Prayer for Relief .................................................................... 47, 48

Certificate of Compliance ..................................................................................... 48

Certificate of Service....... .......................................................................................49

Appendix

                  App. 1            Defendant Long’s Original Counterclaim and Plea in
                                    Intervention by Woodbine Production Company dated
                                    September 9, 2013

                  App 2             Defendant Larry Long’s Second Amended Original
                                    Answer dated October 9, 2013




                                                          vi
                                  INDEX OF AUTHORITIES

                                                 Cases

Aldous v. Bruss, 405 S.W.3d 847
     (Tex. App.—Houston [14th Dist.] 2013, no pet.) ............................15, 29, 30

Azios v. Slot, 653 S.W.2d 111
       (Tex.App.-Austin 1983, no pet.)...................................................................3

Baylor Univ. v. Sonnichsen,
      221 S.W.3d 632 (Tex. 2007).........................................................................29

BMC Software Belg., N.V. v. Marchand,
    83 S.W.3d 789 (Tex. 2002) ..........................................................................24

Brooks v. Northglen Ass’n,
     141 S.W.3d 158 (Tex. 2004).............................................................14, 22, 23

Carper v. Halamicek, 610 S.W.2d 556
      (Tex. Civ. App.--Tyler 1980, writ ref'd n.r.e.)..................................23, 24, 27

City of Keller v. Wilson,
      168 S.W.3d 802 (Tex. 2005).........................................................................33

Clanton v. Clark,
      639 S.W.2d 929 (Tex. 1982)...................................................................17, 32

Clegg v. Clark, 405 S.W.2d 697
      (Tex. Civ. App. -- Waco 1966, writ ref’d) ...................................................27

Cooper v. Texas Gulf Indus., Inc.,
     513 S.W.2d 200 (Tex. 1974).........................................................................27

DART v. Edwards, 171 S.W.3d 584
    (Tex. App.--Dallas 2005, pet. denied) ..........................................................30



                                                    vii
Davis v. Davis, 2013 Tex.App. LEXIS 5525
      (Tex.App.—Dallas 2013, no pet.)...........................................................17, 39

Downer v. Aquamarine Operators, Inc.,
    701 S.W.2d 238, 241-42 (Tex. 1985)................................................13, 20, 31

Dukes v. Migura, 758 S.W.2d 831,
     (Tex.App.—Corpus Christi 1988), rev’d on other grounds,
     770 S.W.2d 568 (Tex. 1989).........................................................................25

Ellis v. First City Nat’l Bank, 864 S.W.2d 555
       (Tex.App.—Tyler 1993, no pet.)...................................................................42

Friesenhahn v. Ryan,
      960 S.W.2d 656 (Tex. 1998).........................................................................29

Gilmer Indep. Sch. Dist. v. Dorfman, 156 S.W.3d 586
     (Tex. App.- Tyler 2003, no pet.)...................................................................25

Green v. Doakes, 593 S.W.2d 762
      (Tex.Civ.App. – Houston [1st Dist.] 1979, no writ)..........................16, 37, 39

Guerro v. Salinas, 2006 Tex. App.
      LEXIS 8562, Tex. App. – Corpus Christi 2006, no pet.)........................30, 31

Hanrick v. Gurley, 93 Tex. 458,
      54 S.W. 347 (1899).......................................................................................41

Hoover v. Materi,
     515 S.W.2d 406 (Tex.Civ.App. – El Paso 1974,
     writ ref’d n.r.e.) ......................................................................................44, 45




                                                       viii
Hudson v. Sweatt, 2014 Tex. App.
     LEXIS 12660 (Tex.App.—El Paso Nov. 21, 2014)................................14, 22

In re Davis, 418 S.W.3d 684
       (Tex.App.—Texarkana 2012, orig. pro.).......................................................39

IKB Industries v. Pro-Line Corp.,
      938 S.W.2d 440 (Tex. 1997).........................................................................34

James v. Underwood, 438 S.W.3d 704
      (Tex.App.—Houston [1st Dist.] 2014, no pet.)..............................................30
Johnson v. Fourth Court of Appeals,
      700 S.W.2d 916 (Tex. 1985)...................................................................13, 20

K.C. Roofing Co., Inc. v. Abundis,
      940 S.W.2d 375 (Tex.App -- San Antonio 1997,
      writ denied) ..................................................................................................34

Kubena v. Hatch,
     144 Tex. 627, 193 S.W.2d 175 (1946) ........................................................26

Kutch v. Del Mar College,
      831 S.W.2d 506 (Tex. App.--Corpus Christi 1992,
      no writ).........................................................................................................30

Love v. Woerndell,
      737 S.W.2d 50 (Tex. App. – San Antonio 1987, writ denied)......................25

Maritime Overseas Corp. v. Ellis,
      971 S.W.2d 402 (Tex. 1998) ........................................................................33

Maverick v. Burney,
     88 Tex. 560, 32 S.W. 512 (1895) .................................................................22



                                                           ix
Mercedes-Benz Credit Corp. v. Rhyne,
      925 S.W.2d 664 (Tex. 1996).......................................................................46

Mulvey v. Mobil Producing Tex. & N.M., Inc.,
     147 S.W.3d 594 (Tex. App.--Corpus Christi 2004,
     pet. denied) ...................................................................................................30

Mustang Drilling, Inc. v. Cobb,
     815 S.W.2d 774 (Tex.App.—Texarkana 1991,
     writ denied) ..................................................................................................26

New v. First Nat’l Bank,
     476 S.W.2d 121 (Tex.Civ.App. – El Paso 1972,
     no writ) .........................................................................................................37

Ortiz v. Jones,
       917 S.W.2d 770 (Tex. 1996).........................................................................33

Puntarelli v. Peterson,
      405 S.W.3d 131
      (Tex. App. – Houston [1st Dist.] 2013, no pet.) ..........................19, 20, 46, 47

Shepherd v. Ledford,
     962 S.W.2d 28 (Tex. 1988) ..........................................................................36

State v.Blair,
       629 S.W.2d 148 (Tex. App. -- Dallas, aff'd, 640 S.W.2d 867
       (Tex.1982))....................................................................................................26

Texas Oil & Gas Corp. v. Ostrom,
      638 S.W.2d 231(Tex.App.—Tyler 1982,
      writ ref’d n.r.e.).......................................................................................27, 28

Veal v. Thomason,
      138 Tex. 341, 159 S.W.2d 472 (1942)....................................................27, 28



                                                           x
Ward v. Hinkle,
     117 Tex. 566, 8 S.W.2d 641 (1928) ...............................................21, 22, 27

Wyatt v. Shaw Plumbing Co.,
      760 S.W.2d 245 (Tex. 1988) ..................................................................13, 20


                                                        Rules


Tex. R. Civ. P. 39 .........................................................................................8, 20, 27

TEX. R. CIV. P. 91 ...................................................................................................29

Tex. R. Civ. P. 299a...........................................................................................16, 34

Tex. R. Civ. P. 756 ............................................................................................iv, 29

Tex. R. Civ. P. 757 .......................................................................................9, 20, 21

Tex. R. Civ. P. 770 .....................................................................................17, 38, 39

Tex. R. Civ. P. 760 ...........................................................................................18, 40

Tex. R. App. P. 33.1(a)(1) ................................................................................17, 39

                                                       Codes

Texas Civil Practice & Remedies Code §3.23 (1981) ...........................................27

Texas Civil Practice & Remedies Code §§ 64.022 and 64.023 .............................39

                                                       Other


68 C.J.S., Partition, § 144b, p. 239 .........................................................................45

Texas Constitution, Article I, Sec. 15 and Article V, Sec. 10 ..............................2, 3

                                                          xi
                 STATEMENT REGARDING ORAL ARGUMENT

      Tate and Miken request oral argument in this appeal. The record is lengthy

and they believe oral argument and the ability to question counsel will assist the

Court in deciding the issues raised in this appeal.


                                           REPLY ISSUES

      Reply to Issue 1 .......................................................................................... 19

      The Court had jurisdiction and “prudential power” to order the mineral
      interests sold and the proceeds partitioned as requested by both sides.

      Reply to Issue 2 .......................................................................................... 29

      Tate and Miken Oil properly pled an action in partition of these mineral
      interests under Rule 756 and the court was correct to deny Long and
      Woodbine’s special exceptions on this ground.

      Reply to Issues 3, 4 and 5 ..................................................................... 32, 33

      There was sufficient evidence to support the trial court’s order.

               Reply to Issue 3

               The court correctly ordered the mineral interests jointly owned by the
               parties sold as requested by both sides. It was undisputed that Tate
               and Miken owned an interest and the order correctly reflected that it
               was partitioning all of the property jointly owned by the parties.

               Reply to Issue 4

               There was sufficient evidence to support the court’s order as to Tate
               and Miken.


                                                      xii
         Reply to Issue 5

         Long and Woodbine pled and stipulated that the mineral interests
         were not subject to partition in kind and agreed that they should be
         sold.

Reply to Issue 6 .......................................................................................... 37

         The court properly appointed a qualified receiver to handle the sale of
         the jointly owned mineral interests.

Reply to Issues 7 and 8 ............................................................................... 40

         Reply to Issue 7

         The court proceeded properly and the parties stipulated that no issues
         would be waived pending the second phase of the partition
         proceedings.

         Reply to Issue 8

         The court entered its order after conducting a proper hearing with all
         parties and after the parties agreed on the record that the interests be
         sold and the money deposited into the registry of the court; further,
         the court and the parties agreed on the record that Long and Woodbine
         were not waiving any claims for contribution.

Reply to Issue 9 ......................................................................................... 46

The court conducted a proper hearing with all parties before entering the
order.




                                                xiii
                                  STATEMENT OF FACTS

          The most critical aspect of the procedural and factual history of this case is

that the parties agreed to the procedure implemented by the trial court. (RR I p.11,

ll 16-25; p. 12 1-5; p. 16, ll 18-25; p. 17 ll 1-12; p. 18 ll 24-25; p. 19 ll 1-8; p. 20 ll

1-8; RR II p. 13 ll 8-14; p. 14 ll 17-20; p. 15 ll 1-3, 20-25; p. 16 ll 1-25; p. 17 ll

20-24; p. 22 ll 5-21; p. 23 ll 11-12). Tate and Miken1 filed suit in Gregg County

against Larry Long seeking, among other relief, a partition of certain oil and gas

properties, including the Young and Thrash leases located in Rusk County and

jointly owned by the parties. (CR I 7). The defendant filed a motion to transfer

venue and the Gregg County court agreed that venue was mandatory in Rusk

County as to all “claims pertaining to the Young and Thrash leases,” and ordered

those matters transferred. (C.R.I 25). On September 4, 2013, Tate filed a request

for hearing asking the Court to determine whether the Thrash and Young leases

were susceptible to partition in kind. (C.R. I 26).

          Long filed a counterclaim and Woodbine Production Company filed a plea

in intervention on September 9, 2014. 2 (CR I 28). Therein, Long and Woodbine

expressly admitted that “This court has jurisdiction and venue over the subject

matter and the persons named herein.” (CR I 28). Apparently Woodbine had filed

claims against Tate, which the Rusk County court had transferred back to Gregg

1
    Tate and Miken will be referred to individually as necessary or collectively as Tate.
2
    Long and Woodbine will be referred to individually as necessary or collectively as Long.
                                                  1
County, but Woodbine explained that it was also filing the claims in Rusk County

“inasmuch as the assertion of its claims must be made in this partition action.” (CR

I 30). The pleading continued “The original filing of this action in Gregg County

preceded the filing of Woodbine’s original action which the Court transferred.”

(CR I 30). The pleading explained that Tate and Long had acquired their interests

in 2000 and that Woodbine was the operator of the Young and Thrash leases. (CR

I 30-31). The pleading sought a declaration of cotenancy, reimbursement and a

creation of an equitable lien. (CR I 32-33).

      On that same day, Long and Woodbine also filed a response to Tate’s

request for a hearing and a plea in abatement. (CR I 114). Therein, they pled that

the court had to first decide whether the property was susceptible to partition in

kind. (CR I 115). They then stated “There is significant dispute whether either of

the two oil and gas leases are partitionable in kind.” (CR I 116). They contended

that “While jointly owned lands which are unexplored and undeveloped for

minerals are usually partitionable in kind because it is presumed to have an equal

distribution of potential minerals in every part of the property, known mineral

interests are usually not partitionable in kind.” (CR I 116). They requested

discovery to determine whether the properties could be partitioned in kind. (CR I

117). They also urged that: “Finally, a partition action is one in which the trial by

jury must be recognized. Texas Constitution, Article I, Sec. 15 and Article V, Sec.


                                          2
10 apply to partition actions. In Azios v. Slot, 653 S.W.2d 111 (Tex.App.-Austin

1983, no pet.), that court held that the factual dispute regarding whether jointly

owned land was or was not partitionable in kind should have been tried before a

jury.” (CR I 119).

      Long and Woodbine also argued that by their suit Tate and Miken sought to

partition “only the interests of Plaintiffs and Defendant, leaving out the other

owners of the leaseholds.” (CR I 119). They asked that others owning an interest in

the minerals be joined as well. (CR I 120). Tate filed a response to Long and

Woodbine’s counterclaim and also a response to the plea in intervention. (CR I

125, 127). Tate explained that “Woodbine now attempts to file an Intervention in

this lawsuit, which is essentially the same lawsuit it filed under Cause No. 2013-

102.” (CR I 127). Tate urged that “Every issue raised by Woodbine in its Plea of

Intervention is now before the Court in Gregg County, Texas. Woodbine does not

own any interest in the real property which is the subject of this lawsuit. Its

presence before this Court is not required for this Court to determine the issues

presented to it in this lawsuit which involves the partition of real estate located in

Rusk County, Texas.”      Id. Thereafter, the court entered an order setting the

hearing. (CR I 130).

      Next Long and Woodbine filed a motion asking the court to reset the hearing

on the property’s susceptibility to partition in kind to allow the court to consider


                                          3
Long and Woodbine’s plea in abatement and the need for additional parties and to

permit discovery on this issue. (CR I 131). Therein, they urged that the Court also

needed to consider Woodbine’s argument that Tate was indebted to it and that the

partition would need to address that issue. (CR I 136). They argued that Tate had

not pled a proper partition and needed to replead.         (CR I 137).     Long and

Woodbine then filed Amended Special Exceptions arguing that plaintiffs were

trying to partition only a part of an undivided interest in oil and gas, namely 7/8 th

of the working interest. (CR I 143). Woodbine also filed a response to Tate’s

motion to strike its intervention, admitting that its Gregg County suit was identical,

but arguing that it was also a necessary party to the partition action. (CR I 164). It

urged that its claim for contribution had to be determined in the partition suit. (CR

I 173, 181).

      On that same day, Long filed an amended answer. (CR I 186). Therein,

Long asserted that “Although addressed separately in Defendant's Motion to Abate,

Plea in Abatement and Supplemental Plea in Abatement, the lack of necessary

parties in this case is a jurisdictional issue because the non-party, cotenant

leasehold interest owners have an immediate right of possession in the entire

undivided leasehold estate.” (CR I 187). Long also argued that the interests were

not susceptible to being partitioned in kind. (CR I 188). Long represented, “As

there is no reasonable way to determine how to partition in kind the minerals at a


                                          4
reasonable cost, the lands should be partitioned by sale, rather than in kind, and

the proceeds distributed according to each party's interest.” (CR I 188, emphasis

added). Long also complained that Tate had failed to join the owners of the

outstanding 1/8th working interest. (CR I 189). Long then filed a Supplemental

Plea in Abatement and Supporting Brief. (CR I 193).

      On October 17, 2013, the court held a hearing on Plaintiff's Motion to

Transfer Venue or Motion to Strike, Plaintiff's Motion to Strike and Intervention,

and Long and Woodbine’s Special Exception and Plea in Abatement. (RR 1 3 ll

12-16). Tate’s counsel began with an explanation of the history of the property and

noted that in their answer, the defendants had argued that the land could not be

partitioned in kind, but should instead be sold. (RR 1 5). He explained that there

was no dispute that the parties together owned 7/8 th of the working interest. Id. He

next pointed out that Long had advised that he would want a jury trial if the

interests were to be partitioned in kind. (RR 1 4 ll 4-16). He then stated, “But

there's a way to avoid that, and we're going to suggest it to the Court, because the

defendants have already suggested it; they pled it twice. They want to sell the

properties and divide the proceeds, and we've – Clay Wilder and I have talked with

our client, and we've gone over this matter, and we're totally in agreement with

that.” (RR 1 6 ll 17-22). He explained that this would eliminate the need for the

jury trial, expedite matters and be an efficient and economical way to resolve the


                                          5
case. (RR 1 7 ll 1-6). Counsel then stipulated that the property should be sold.

(RR 1 7 ll 9-10). Counsel explained that Tate had already deposited $125,000 into

the registry of the court for any money he owed Long. (RR 1 8 ll 6-9).

      The Court then asked if the parties were in agreement that the property was

not subject to being partitioned in kind. (RR 1 11 ll 16-17). Long’s counsel

responded that “We agree that that is not susceptible to being partitioned in kind.”

Id., ll 18-19. However he expressed concern about the timing. Id., ll 21-22. The

court then confirmed that while he understood those concerns, “the parties are

therefore in agreement that at some point in time that the property will need to be

sold; therefore, it just appears to me then the questions before the Court would be

who owns – number one, if all parties are necessarily joined in the lawsuit, and

then the next step would be who owns what and who is owed what.” Id., ll 23-25;

RR 1 12 ll 1-5.

      The court then discussed the joinder of parties. The court asked if it had to

make that determination before it ordered the sale. (RR 1 15, ll 24-25). Long

replied with concerns about liens and potential claims. (RR 1 16-17). And Tate

represented he agreed. (RR 1 17 ll 6-7). Long and Woodbine’s counsel then

stated, “I think we have reserved Woodbine’s position by filing.” (RR 1 17 ll 9-

10). To which the court replied, “Right, And the Court would so order that you

have.” Id., ll 11-12. The court also stated, “Well now, that’s why I’m agreeing on


                                         6
what the agreement is. I mean, I think – and y’all may not be in agreement on this,

so I think that the Court needs to make a determination of whether or not there

needs to be any additional parties added to the lawsuit, And then number two, then

the Court could order the property sold, and the Court then determines – and I may

have this out of order – then determines any issues of offsets, liens, ownership,

contributions, who owes – who is owed what money.” (RR 1 18 ll 24-25; 19 ll 1-

7). To which Long and Woodbine’s counsel replied, “Who gets what.” (RR 19 l

8).

      The Court next advised that its dispute at that time was “the party issue, and

the additional other lawsuits.” (RR 1 ll 23-24). The Court then stated, “And I

would be at this point in time to be inclined, and I would think ya’ll would

hopefully want to get all of that resolved before this Court, if possible.” Id., ll25;

RR 1 20 ll 1-2. Long and Woodbine’s counsel replied, “Yes, sir.” (RR 1 20, ll 3).

The Court then stated, “If possible. Okay. Everybody is shaking their head yes for

the record.” Id., ll 4-5. The court then summarized, “All right. Let’s go through

this. The parties, that’s the first dominant issue, to make sure we have all parties

before the Court with affidavits filed before the Court under oath with any interest

either party might have, know of, et cetera. The Court will rule upon necessary

parties at that time.” (RR 1 21, ll 6-11). The Court concluded, “All right. So we

determine the parties, make sure we have all parties before the Court. At that time,


                                          7
subject to whatever interest they might have or whatever arguments they might

have, order the property sold, and then determine ownership of the property.” (RR

1 22 ll 10-14). The Court then granted the abatement in order to determine the

party question. (RR 1 24 ll 3-4). Counsel for Long and Woodbine confirmed this

was the order of the Court. Id., ll 5-7. The Court concluded, “Yes. That was the

effect of the order. But that we have these other issues resolved before the – for

the Court’s determinations. All right. Thank you, gentlemen.” (Id., ll 7-10).

      Subsequent to this hearing Tate filed a brief supporting the position that the

joinder of additional owners was not necessary. (CR II 213). Tate explained that

Bonanza Production Company had assigned Tate and Long all of its 7/8 th interest

in the Thrash and Young leases in 2000. (CR II 214). Tate noted that the other

1/8th working interest was owned by other entities who were not a party to the suit.

Id. Tate explained that in 1993, Granite Oil had sold and assigned all of its interest,

the 7/8th working interest, in these leases to Bonanza. Id. Tate noted that the

outstanding 1/8th interest was not involved in either the assignment to or from

Bonanza. Id. Tate then presented argument and authorities supporting the position

that the joinder of the outstanding 1/8th interest was not necessary for the sale of

Tate and Long’s 7/8th, including that joinder was not necessary under Rule 39. (CR

II 216). Tate presented a summary of its argument in the brief. (CR II 224-225).




                                           8
Tate also attached an affidavit of a landman, and various other supporting

documents. (CR II 227-85).

      Long filed a reply brief in which he urged that joinder was mandatory under

Rule 757 governing partition. Tex. R. Civ. P. 757. (CR II 298). Long disagreed

with Tate that because the sale only involved the 7/8 th owned jointly by Tate and

Long, it was not necessary to join the owners of the other 1/8 th. (CR II 302). Long

also filed notices of liens and other burdens it claimed affected the Young and

Thrash leases. (CR Supp I, II and III).

      The Court issued a letter ruling on December 18, 2013, denying Long’s plea

in abatement and a corrected letter ruling on January 8, 2014. (CR II 361-62). The

Court then issued an order asking the parties to confer and see if they could reach

an agreement regarding its order. (CR II 363).

      The record next contains Tate’s motion for protective order. (CR III, IV &

V). Therein, Tate complained about the massive volume of discovery it had

received from Woodbine. (CR III 371). Tate explained that the only thing pending

before the Court was the sale of the Thrash and Young leases. Id. Tate also wrote:

“Defendants have agreed in open court that the properties could not be partitioned

in kind, and both Plaintiffs and Defendants and Intervenor have agreed in

statements to this Court that the properties should be partitioned by sale.” Tate




                                          9
explained that most of the discovery it had received was identical to discovery

served in the Gregg County suit. (CR III 372).

      Woodbine responded that the court first needed to determine the burdens and

liens against either party’s respective interest. (CR VI 1063-64). Woodbine also

filed a Motion to Compel. (CR VI 1101). The court set the matter for hearing on

May 1, 2014. (CR VI 1114). The parties and counsel appeared at the hearing, and

agreed to take up both the protective order and motion to compel. (RR 2 3 ll 15-

16). The parties ended up agreeing to be bound by the same discovery in both suits.

(RR 2 9 ll 7-14, 24-25; 11 ll 2-9).

      Next, the parties again addressed the procedure to be followed in the case.

Tate represented that the parties had agreed that their interests should be sold and

that the court then place the funds into the registry of the court while the question

of any claims was sorted out. (RR 2 13 ll 8-19). Long and Woodbine expressed

concerns that they not waive any rights, stating “if we could have an agreement

that’s somewhat procedurally and substantively binding by agreeing to that method

to do it that we’re no waiving our claim for contribution. Because the cases say –

otherwise the cases are going to hold that we do, so that – I mean, some way

procedurally we’ve got to get past that, or we’re going to have waived or we’re at

risk of having waived our claim for contribution.” (RR 2 14 ll 17-24). Tate

replied that he didn’t think there was dispute; that the interests needed to be sold,


                                         10
the funds deposited with the court and the court then determine if there was any

claim of contribution that would affect the distribution of the funds. (RR 2 15 1-

23). Tate concluded, “So they’re not going to be prejudiced or waive anything,

because all of these claims are pending over here. And you’re not – and the Court

is not going to distribute any funds until the Court is satisfied that all of these

issues have been resolved and any claim that one side wants to make against the

other is not affecting how this is to be – how this money is to be distributed.” (RR

2 16 ll 2-8).

       Long responded that “the stipulation that we made is clear ….” (R 2 16 ll

19-20). Long repeated the concern that there was authority that the court must

make the determination as to claims at the first hearing and it was concerned that it

not waive that right. Long stated: “So the language of the Court makes it clear that

that’s not just a straight partition action where you’re going to parcel it out and sell

it, but it goes to the question also of contribution claims, and the Court assumes

jurisdiction over it under our agreement.” (R 2 17, ll 7-12).

       The court agreed, stating, “All right. So then the order of the Court would

be that you’re not waiving any rights for contributions under the statute because

you’re allowing the case – the property to be sold first without making that

determination prior to the sale of the property.” (RR 2 17 ll 20-14). Long repeated

concerns about waiver, advising the court it did not want to “step into this trap.”


                                          11
(RR 2 19 ll 3-10). Tate assured the court that it had stipulated they were not

waiving anything. (RR 2 22 ll 16-21). Tate also stated, “But here’s the thing about

continuing – and first off, you know, what counsel over here needs to tell the Court

is why they changed their minds.” (RR 2 22 ll 19-21). To which Long responded,

“We haven’t.” (RR 2 22 l 22). Long continued, “Well wait a minute. I think we

agreed to sell the lease and split the money.” (RR 2 23 ll 11-12). Long expressed

concerns about the timing and waiver. Tate replied, “I just want to make sure our

position is clear. As far as we’re arguing the timing and the urging that the leases

be sold sooner rather than later, we’re not doing so to try to trick or to lead counsel

into some trap. If there’s evidence of that, Mr. Clark and I both have said on the

record today that we’ve stipulated that whatever claims they have of any kind or

character, we will say that they can make those claims against these funds. We are

not trying to say or argue that they would have waived anything, and we’re willing

to say that and we do say that at this time.” (RR 2 27 ll 2-12).

      Finally, Long expressed concerns about whether this argument was

jurisdictional, stating “The other thing that's bothering me is if -- something

jurisdictional can't be waived, so the question is, is that issue jurisdictional or not.”

(CR 2 28 ll 6-8). The court instructed the parties to submit briefs on that issue

within a week and promised to take a look at those. (CR 2 28 ll 13-14). No such

briefs are contained in the Clerk’s Record.


                                           12
        On July 31, 2014, the court entered an order finding the property not

susceptible to partition in kind, appointing a receiver and ordering the property

sold.    The order expressly stated:     “It Is Therefore Ordered that the above-

described property be sold and that the proceeds or [sic] such sale be distributed

among the above-listed co-owners in accordance with further orders of this court.”

(CR VI 1116). No findings of fact were requested or filed. Long and Woodbine

then filed a Notice of Appeal. (CR VI 1127).

                           SUMMARY OF THE ARGUMENT

        In the first issue, Long argues that the court’s failure to join the owners of

the other 1/8th interest was jurisdictional or in the alternative that the court lacked

prudential power to proceed. (Long brief at 2). As a result, Long claims the court

erred in denying Long’s plea in abatement. (Long brief at 1, 11, 13). An appellate

court reviews a ruling on a plea in abatement under an abuse of discretion standard.

Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988). A court abuses its

discretion when it acts so arbitrarily or unreasonably as to amount to a clear and

prejudicial error of law. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917

(Tex. 1985). A court acts unreasonably when it acts without reference to any

guiding rules of principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d

238, 241-42 (Tex. 1995).




                                          13
      With respect to Long’s jurisdictional argument, the parties agreed the court

had subject matter jurisdiction and it did. (CR I 28; RR 2 17 ll 7-12). Even had the

court needed to join additional parties, which it did not, the failure to join all

necessary parties to a partition does not deprive the court of subject matter

jurisdiction. See Hudson v. Sweatt, 2014 Tex.App. LEXIS 12660 (Tex.App. – El

Paso, Nov. 21, 2014). Instead, under Rule 39, the trial court is to decide whether it

has the authority to proceed and if it does proceed, the judgment is final as to the

parties before the court. See Brooks v. Northglen Ass’n, 141 S.W.3d 158, 192

(Tex. 2004).

      Here, it was not necessary to join the owners of the other 1/8th interest.

Their interests would not be affected by this suit. Long contends that Rule 757

required the joinder, but that rule requires that the clerk issue citation for each joint

owner or claimant. Long and Tate were the only joint owners or claimants of the

7/8th interest to be partitioned. No one else had an interest in the property sought to

partitioned and no one else would be affected by the decision.

      Long acknowledges that under Brooks, the trial court’s decision might not

be jurisdictional and argues that in the alternative, this court review the complaint

under a “prudential power” standard of review. (Long brief at 20). As seen above,

this issue would be reviewed under an abuse of discretion standard. The trial court

did not abuse its discretion in proceeding and acted prudently in doing so. The


                                           14
court considered all the arguments of the parties and received briefing on the issue.

(CR II 213, 296). And even more importantly, it proceeded according to the

agreements and stipulations of the parties. . (RR I p.11, ll 16-25; p. 12 1-5; p. 16, ll

18-25; p. 17 ll 1-12; p. 18 ll 24-25; p. 19 ll 1-8; p. 20 ll 1-8; RR II p. 13 ll 8-14; p.

14 ll 17-20; p. 15 ll 1-3, 20-25; p. 16 ll 1-25; p. 17 ll 20-24; p. 22 ll 5-21; p. 23 ll

11-12).

      In Issue 2, Long complains that the court erred in denying Long’s Special

Exceptions. (Long brief at 2, 11, 33). As with Issue 1, this issue is also reviewed

for an abuse of discretion. See Aldous v. Bruss, 405 S.W.3d 847, 857 (Tex.App. –

Houston [14th Dist.] 2013, no pet.). While the court held a hearing on the special

exceptions, there is no ruling in the record. Long argues that the ruling may be

implied, but the record does not support that. As the conclusion of the hearing the

court set out the procedure it would follow according to the parties’

representations. (RR 1 21 ll 6-11). The court held a subsequent hearing on several

matters and again set out the procedure to be followed.           (RR 2 23-25). It is

doubtful that Long preserved this complaint, but even it was preserved, the

complaint is without merit. The court did not abuse its discretion.

      By the next three issues, Long attacks the sufficiency of the evidence to

support the ownership by the parties (Issue 3), the entry of the order (Issue 4) and

the decision that the interests were not susceptible to partition in kind (Issue 5).


                                           15
(Long brief at 3-4, 12, 35). Long begins by attacking the trial courts “findings and

conclusions.” (Long brief at 35). The problem with this argument is no findings

were requested or filed. Recitations in the judgment are not findings. Tex R.Civ.P.

299a.

        Furthermore, even if there were such findings, Long’s arguments have no

merit. There was more than sufficient evidence, including the stipulations of the

parties, to support the trial court’s order. There was never any dispute as to the

ownership of the 7/8th interest (CR I 28-39; RR I 10 ll 18-19; Long brief at 37).

And while Long argues that the court’s order ordered the entire 8/8th interest sold,

it did not. It provided only that the property owned jointly by Tate and Long be

sold.

        Long complains about the fact the order found the property not susceptible

to partition in kind. (Long brief at 37). From the very beginning Long has argued

that the property was not susceptible to being partitioned in kind and would instead

need to be sold. (CR I 116, 188; RR 1 11 ll 16 – 20). Long admits to this

stipulation, but argues it wasn’t valid without the owners of the outstanding 1/8 th

interest. (Long brief at 38). Long and Tate’s stipulation would not only be valid as

between them, but binding.

        In Issue 6, Long complains about the appointment of a receiver to handle the

sale. This too is reviewed for an abuse of discretion. See Green v. Doakes, 593


                                         16
S.W.2d 762, 764 (Tex.Civ.App. – Houston [1st Dist.] 1979, no writ). The parties

agreed to the sale of the minerals and the appointment of a receiver is provided for

under Rule 770. Tex.R.Civ.P. 770. As the court in Green correctly noted, receivers

are appointed in practically every partition case pursuant to Rule 770. Id.

      Long complains that the order did not require the receiver to take an oath or

post a bond.     (Long brief at 40).    The record does not reflect that Long or

Woodbine ever made this complaint to the court, so it does not appear this

complaint was preserved under Rule 33.1(a)(1).          Tex. R. App. P. 33.1(a)(1).

Additionally, even if a silent record would be sufficient to show the receiver was

not sworn, there is also nothing in this record to show that the receiver has

assumed his duties. See Davis v. Davis, 2013 Tex.App. LEXIS 5525 (Tex. App. –

Dallas 2013, no pet.).

      In the 7th and 8th issues, Long complains about the court’s decision to defer

its ruling on the interests and outstanding claims until after the sale. (Long brief at

5, 12, 40).     Courts are given wide discretion in managing their dockets and

appellate courts do not interfere absent a showing of a clear abuse of that

discretion. Clanton v. Clark, 639 S.W.2d 929, 931, (Tex. 1982). The fact is, the

court did not defer ruling on the amount of anyone’s interest - that was never in

question.     What the court deferred was ruling on any outstanding claims for




                                          17
contribution which were to be taken into consideration before the court divided the

money.

      Rule 760 requires a court to determine the shares and interests of the joint

owners, as well as all questions affecting title to the land which may arise in the

initial phase of the partition action. Tex. R .Civ. P. 760. Here, the parties agreed

their interests would be sold, and there were no questions affecting any title to

those interests. Instead, Long is complaining about claims for contribution, which

claims were expressly reserved by the court and agreed by the parties and the court

not to be waived. (RR 2 14 ll 17-19; 17 ll 2-12, 20-24; 27 ll 2-12; RR1 17 ll 6-10).

These monetary claims would simply affect how much of the proceeds from the

sale the parties would receive. (CR 1 33; Long brief at 45). They would not affect

anyone’s title or share of the property in question.

      Long’s complains that any matters decided in the first judgment may not be

considered in an appeal from the second. (Long brief at 43). This is true, but here,

the issues relating to any claims for contribution were expressly reserved.

Moreover, everyone understood and agreed that any claims for contribution were

going to decided later and the proceeds of the sale divided accordingly. (RR1 14 ll

17-19; 17 ll 6-10; RR2 14 ll 7-24; 27 ll 2-12).

      Finally, in the last issue, Long argues that the trial court erred by denying the

request for a jury trial. (Long brief at 7, 13, 49). While it is true that Long


                                          18
requested a jury trial in his pleadings, he also represented one was necessary on the

issue of whether the land was capable of being partitioned in kind. (CRI 119). At

the first hearing Tate’s counsel explained that they would agree to selling the

interests in an effort to expedite matters and avoid having to have a jury trial. (RR

1 6 ll 4-25; 7 ll 1-6). Long never mentioned wanting a jury trial again. Nor did

Long or Woodbine ever make any complaint with the court about the court’s

failure to hold a jury trial. In proceeding with the hearings without complaint,

Long has likely waived any such complaint. See Puntarelli v. Peterson, 405

S.W.3d 131, 134 (Tex.App.—Housont [1st Dist.] 2013, no pet). Furthermore, even

had the issue been preserved, there was no error. The court proceeded according to

the stipulations and representations of the parties.

                       ARGUMENT AND AUTHORITIES

Reply to Issue 1

      The Court had jurisdiction and “prudential power” to order the
      mineral interests sold and the proceeds partitioned as requested by both
      sides.

      Long argues that the trial court was “without either the ‘jurisdictional’ or

‘prudential power’ or ‘prudential authority’ to proceed to partition the leasehold

estate of the Young and Thrash Leases without the joinder of owners of all the

undivided leasehold interests in the Young and Thrash Leases.” ( Long brief at 2).

Long claims the court erred in denying the plea in abatement and also in


                                          19
proceeding to judgment because the court was without either jurisdiction or the

prudential power to sign the order. Id.

         An appellate court reviews the trial court’s ruling on a plea in abatement

using an abuse of discretion standard. See Wyatt, 760 S.W.2d at 248. A trial court

abuses its discretion when it reaches a decision so arbitrary and unreasonable as to

amount to a clear and prejudicial error of law. Johnson, 700 S.W.2d at 917. A

court acts arbitrarily and unreasonably when it acts without reference to guiding

rules and principles. Downer, 701 S.W.2d at 241-42.

         Long argues that “Tex. R. Civ. P. 757 sets forth jurisdictional requirements

for bringing a partition action, and among its requisites, is that all persons holding

a cotenancy interest in the possessory estate are joined as parties.” (Long brief at

15). According to Long, the joinder of all parties is jurisdictional in a partition

action even after Rule 39 was amended. Tex. R. Civ. P. 39.

         In truth, it is not even necessary to decide which rule governs the joinder of

parties in this case. The parties agreed that the court had subject matter jurisdiction

and also agreed and even requested the procedure the court followed in this case.

Long acknowledged that this “was not just a straight partition action where you’re

going to parcel it out and sell it, but it goes to the question also of contribution

claims, and the Court assumes jurisdiction over it under our agreement.” (R 2 17 ll

7-12).


                                           20
      But the fact is, as Tate urged, it was not necessary to join the owners of the

remaining 1/8th interest in these leases. Long and Tate jointly owned 7/8 th of the

working interest in the Young and Thrash leases and that was the property sought

to be partitioned. (RR 1 4 ll 4-16). So Long and Tate owned all of the interest

sought to be partitioned. They acquired their interests from Bonanza which had

acquired them from Granite. (CR II 214, 224-225).

      Rule 757 reads: “Upon the filing of a petition for partition, the clerk shall

issue citation for each of the joint owners, or joint claimants, named therein, as

in other cases, and such citations shall be served in the manner and for the time

provided for the service of citations in other cases.” Tex. R. Civ. P. 757. Again,

Long and Tate were the only joint owners of the 7/8th working interest.

      Long argues that, “First, Texas courts have long recognized that Tex. R. Civ.

P. 757 sets forth jurisdictional requirements for bringing a partition action, and

among its requisites, is that all persons holding a cotenancy interest in the

possessory estate are joined as parties.” (Long brief at 16). Long cites Ward v.

Hinkle, 117 Tex. 566, 8 S.W.2d 641 (1928), for the proposition that: “It is well

settled in this court, that whenever in the course of a partition suit it is disclosed

that all who have an interest in the property to be divided are not parties, it is the

duty of the court to arrest the proceedings until they are made parties, and this




                                          21
should be done at any stage of the case.” Id., at 579, 645 quoting Maverick v.

Burney, 88 Tex. 560, 32 S.W. 512 (1895).

      Here, all parties who owned an interest in the property to be divided, namely

the 7/8th working interest, were parties to the suit. This was not a suit to divide or

sell a tract or parcel of land, but instead to sell a separate and defined interest in oil

and gas. Long and Tate were the only indispensible parties since they were the

only co-owners of the interest sought to be partitioned. The sale of their 7/8th

interest would have no affect on the owners of the remaining 1/8 th.

      Moreover, Long’s argument does not support the conclusion that had there

been a failure to join all necessary parties the court would have lacked either

jurisdiction or prudential power to proceed. The lack of necessary parties to a

partition does not deprive the court of subject matter jurisdiction. See Hudson,

2014 Tex. App. LEXIS at 12660. Instead, under Rule 39, the trial court is to decide

whether it has authority to proceed and if it does proceed, then its judgment is

considered a final and complete adjudication of the dispute as to the parties before

the court. See Brooks, 141 S.W.3d at 162.

      Long acknowledges that the Supreme Court’s pronouncements in Brooks,

141 S.W.3d at 162, might defeat the argument that this was jurisdictional, but

argues that if this Court decides it is not jurisdictional, then it should be reviewed

under a “prudential power” standard of review. (Long brief at 20). Long contends


                                            22
that in Brooks, the court noted the preference “to address non-joinder issues under

a ‘prudential power’ standard of review.” As noted above, the correct standard of

review is abuse of discretion. It is unclear what Long means by a “prudential

power standard of review,” but presumably it would require a finding that the court

acted with prudence.

      Long also argues that there really is no distinction between jurisdiction and

prudential power, except whether the issue is fundamental error when not raised

below. Id. Long contends that the question whether this is fundamental error isn’t

at issue here since it was preserved below. This argument misses the point and

completely glosses over the distinction the Texas Supreme Court was making in

Brooks. In Brooks, the Supreme Court disagreed that the absence of parties

deprived the court of jurisdiction. See Brooks, 141 S.W.3d at 161-2. The Court

held that the question was not one of jurisdiction, but rather whether the trial court

should have proceeded to enter judgment when a subset of homeowners had not

been joined in the suit. Id., at 162.

      Long relies on this Court’s opinion in Carper v. Halamicek, 610 S.W.2d

556, 558 (Tex. Civ. App.--Tyler 1980, writ ref'd n.r.e.). Carper should not be

controlling since it dealt with a tract of land, not an oil and gas interest. While, in

Carper, this Court recognized that “Proceeding without an ‘indispensible’ party

was previously regarded as fundamental error and stripped the court of jurisdiction


                                          23
to decide a case;” it then decided that the lack of a necessary party in a partition

was indeed one of those rare instances that might deprive a court of jurisdiction to

proceed. Carper, 610 S.W.2d at 557. The biggest difference between Carper and

the current case is that there, the absent parties’ rights had been adjudicated

without their presence or participation. Id., at 559. Their interests were affected

and their rights adjudicated without their participation in the suit. Here, all that

was affected was Long and Tate’s 7/8th interest. The remaining 1/8th interest was

not affected by the suit, nor were the owners of the other 1/8th rights adjudicated in

any way. Further, the owners of that interest would not be estopped from filing

any claim against the participating parties.

      Another difference is that in Carper, the Court was requested to file and did

file findings of fact and conclusions of law. Id., at 557. Here none were requested

or filed. When no findings are requested or filed, the reviewing court implies all of

the findings of fact necessary to support the judgment. BMC Software Belg., N.V.

v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). “When the appellate record

includes the reporter’s record and clerk’s record, these implied findings are not

conclusive and may be challenged for legal and factual sufficiency in the

appropriate appellate court. Id.




                                          24
       Long also cites a number of cases that are distinguishable to this one. In

Gilmer Indep. Sch. Dist. V. Dorfman, 156 S.W.3d 586, 588 (Tex. App. Tyler 2003,

no pet.) [Long brief at 20], this Court addressed the need for the Commissioner of

Education to be joined in a suit to declare a statute unconstitutional. Love v.

Woerndell, 737 S.W.2d 50 (Tex. App. – San Antonio 1987, writ denied) [Long

brief at 21] addressed the failure to join all heirs in a suit affecting the title to real

property. The court wrote, “The heirs of a decedent are jurisdictionally

indispensible parties to a suit against the estate which involves real estate….”

Clearly a ruling in that case adjudicating title to property of an estate would affect

all heirs. That is not the case here. Here, Tate and Long were the only owners of

the property to be affected, namely the 7/8th working interest. No one else would

have their interests altered or affected by the Court’s order to sell that 7/8 th.

       Dukes v. Migura, 758 S.W.2d 831, 832 (Tex.App.—Corpus Christi 1988),

rev’d on other grounds, 770 S.W.2d 568 (Tex. 1989) [Long brief at 21], involved

the foreclosure of a lien on real property securing a debt. There the court

recognized that “Thus, under current Rule 39, the failure to join ‘necessary’ or

even ‘indispensable’ parties does not render a judgment void and totally

unenforceable. It is enforceable between the parties which were before the court

and is res judicata to them.” Id., at 833. The court then stated,“A judgment may

be void in part and valid in part, provided the valid portion is not so dependent on


                                            25
the invalid that it falls with it. Kubena v. Hatch, 144 Tex. 627, 193 S.W.2d 175,

177 (1946); State v.Blair, 629 S.W.2d 148, 150 (Tex. App. -- Dallas), aff'd, 640

S.W.2d 867 (Tex. 1982). We hold that the first judgment is void insofar as it

purports to affect appellant's interest and cannot be enforced against that interest.

No valid lien on appellant's interest in the devised realty exists.” Id., at 834.

      Long also contends that Mustang Drilling, Inc. v. Cobb, 815 S.W.2d 774

(Tex.App.—Texarkana 1991, writ denied) supports Long’s argument rather than

Tate’s. (Long brief at 23). Long is wrong -- Mustang Drilling supports Tate. The

question in Mustang Drilling was whether a 1933 partition had actually divided the

surface and the minerals, or just the surface. Mustang Drilling, 815 S.W.2d at 775.

Cobb had argued that the minerals were not covered, because all mineral owners

were not parties, and the court therefore did not have the mineral estate before it.

Id., at 777. The court disagreed, finding “all those owning shares of the estate of

Joe and Lemmer Pierson, both as to surface and minerals, were parties, and it was

the estate that was being partitioned.” Id. In other words, the court looked at what

interests and/or property were affected by the partition. There, everyone owning a

share of the estate was a party. Here, everyone owning any portion of the 7/8 th

working interest was a party. No one else’s interests were involved or affected.




                                           26
      Long also argues that Tate misconstrued the holding in Texas Oil & Gas

Corp. v. Ostrom, 638 S.W.2d 231 (Tex.App.—Tyler 1982, writ ref’d n.r.e.). (Long

brief at 25). In Ostrom, this Court wrote:

      Rule 39(a) no longer speaks of ‘necessary’ and ‘indispensable’ parties, and
      Texas courts have begun to discard these terms. Carper v. Halamicek, 610
      S.W.2d 556, 557 (Tex. Civ. App. -- Tyler 1981, writ ref’d n.r.e.). Moreover,
      Rule 39 focuses not so much upon whether the court has jurisdiction, but
      upon whether the court ought to proceed with the parties before it. Cooper v.
      Texas Gulf Indus., Inc., 513 S.W.2d 200, 204 (Tex. 1974). The Cooper
      decision did not rule out the possibility that a party’s absence would deprive
      the court of jurisdiction to adjudicate the dispute between the parties before
      it; however, it did state that this situation would be ‘rare indeed.’ Id. One
      commentator has noted that under Rule 39 any change should be to lessen
      the number of ‘indispensable’ parties. Moreover, ‘if a party were held not
      indispensable under the prior rule, he should not be held indispensable
      under the amended rule [Rule 39]. 1 McDonald, Texas Civil Practice § 3.23
      (1981).

Ostrom, 638 S.W.2d at 233. This Court also wrote, “The general rule in a partition

case is that all owners of property must be joined. Ward v. Hinkle, 117 Tex. 566, 8

S.W.2d 641, 645 (1928); Carper v. Halamicek, supra; Clegg v. Clark, 405 S.W.2d

697, 698 (Tex. Civ. App. -- Waco 1966, writ ref’d). Implicit in this rule is that the

owners who must be joined are the owners of the property sought to be

partitioned.” Id.

      This Court held that the royalty owners were not necessary parties, and

while the Court talked in terms of non-possessory interests, etc., it noted that the

non-possessory interest owners’ interest would be neither increased nor decreased.

Id., at 234, citing Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472 (1942). This
                                         27
Court concluded that the absence of the lessors and royalty owners did not deprive

the Court of jurisdiction to adjudicate the dispute as to the parties before it. Id. This

Court also noted in Ostrom that “The trial court is vested with broad discretion

concerning questions of joinder. Thus we will reverse only with a clear showing

that it has abused its discretion.” Id., at 235, n. 7.

       Finally, Long argues that Tate has failed to recognize the underlying

practical and policy reasons for the joinder of all those owning an interest. (Long

brief at 29). Yet, it is Long that fails to see these reasons. Long and Tate were co-

owners of 7/8th of the working interest. They wanted to part ways and divide their

respective interests. While Tate originally sought to partition the interest in kind,

Long argued it was not susceptible to partition in kind, but had to be sold. Tate

decided to agree with Long. His counsel explained that in doing so, this would

eliminate the need for the jury trial, expedite matters and be an efficient and

economical way to resolve the case. (RR 1 7 ll 1-6). The court actually granted

the abatement to take up the party question.             (RR 1 24 ll 3-4).    The court

subsequently denied the motion after giving the parties the chance to fully brief the

issue. (CR II 363).

       Tate is correct that all that was ever sought to be partitioned was their joint

interests – the 7/8th interest. Long is correct that they will each continue to share

their interests with the outstanding owners of the remaining 1/8th. Contrary to


                                             28
Long, the court could and did grant complete relief as to these parties. Ordering the

division of these two partners’ interests and selling it as requested by Long should

have no effect on the outstanding 1/8th interest. As such, the order is final and

enforceable as to Long and Tate.

Reply to Issue 2

      Tate and Miken Oil properly pled an action in partition of these mineral
      interests under Rule 756 and the court was correct to deny Long and
      Woodbine’s special exceptions on this ground.

      Long continues to complain about the absence of the 1/8th interest owners,

this time couching it in terms of error “in awarding the judgment by denying

Long’s Special Exceptions.” (Long brief at 2). Long contends that Tate and Miken

failed to properly plead an action for partition.      (Long brief at 2). “Special

exceptions may be used to challenge the sufficiency of a pleading. TEX. R. CIV. P.

91; Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998). The purpose of a

special exception is to compel the clarification of the opposing party's pleading

when that pleading is not sufficiently specific or fails to plead a cause of action.

See Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007). A trial court

has broad discretion in ruling on special exceptions. See id. A trial court's ruling

will be reversed only if there has been an abuse of discretion. See Aldous v. Bruss,

405 S.W.3d 847, 857 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Pleadings

are liberally construed, but special exceptions are appropriate when a pleading

                                         29
does not meet the threshold of "fair notice" of the pleader's contentions. See id.”

James v. Underwood, 438 S.W.3d 704, 715 (Tex.App.—Houston [1st Dist.] 2014,

no pet.).


        Long correctly notes that the court held a hearing on these special

exceptions. (Long brief at 35). Long also admits that the court never expressly

ruled on the special exceptions. (Long brief at 35). However, Long contends that

the denial of these special exceptions would be implied. Long cites Guerrero v.

Salinas, 2006 Tex. App. LEXIS 8562, 9, 2006 WL 2294578 (Tex. App. -- Corpus

Christi 2006, no pet.) as support. (Long brief at 35). There, the court actually

noted that “Where the record does not show the movant obtained a ruling on the

special exceptions, the movant has failed to preserve this complaint for appellate

review. DART v. Edwards, 171 S.W.3d 584, 587 (Tex. App.--Dallas 2005, pet.

denied) Here, however, because trial did proceed on the pleadings as filed, and

because the trial court's denial of the special exceptions is essentially

acknowledged by all parties and supported by the record, we infer that the trial

court denied the special exceptions.” Id.

       The Court in Guerrero also noted that:

       The trial court has wide discretion in ruling on special exceptions. Mulvey v.
       Mobil Producing Tex. & N.M., 147 S.W.3d 594, 603 (Tex. App.--Corpus
       Christi 2004, pet. denied); Kutch v. Del Mar College, 831 S.W.2d 506, 508
       (Tex. App.--Corpus Christi 1992, no writ). To determine whether a trial
       court abused its discretion, we must decide whether the trial court acted

                                            30
      without reference to any guiding rules or principles, in other words, whether
      the act was arbitrary or unreasonable. Downer v. Aquamarine Operators,
      Inc., 701 S.W.2d 238, 241-42, 29 Tex. Sup. Ct. J. 88 (Tex. 1985). Merely
      because a trial court may decide a matter within its discretion in a different
      manner than an appellate court would in a similar circumstance does not
      demonstrate that an abuse of discretion has occurred. Id.”

Guerrero, 2006 Tex. App. LEXIS 8562 at 6-7.

      Unlike the facts in Guerrero, it is questionable whether Long preserved this

issue for review. While Long had filed special exceptions, no ruling was ever

obtained and instead the court proceeded with the procedure it found to be agreed

upon by the parties. At the conclusion on the hearing covering the special

exceptions, the court stated, “And I would be at this point in time to be inclined,

and I would think ya’ll would hopefully want to get all of that resolved before this

Court, if possible.” (RR 1 20 ll 1-20). Long and Woodbine’s counsel replied,

“Yes, sir.” (RR 1 20, ll 3). The court then stated, “If possible. Okay. Everybody

is shaking their head yes for the record.” Id., ll 4-5. The court then summarized,

“All right. Let’s go through this. The parties, that’s the first dominant issue, to

make sure we have all parties before the Court with affidavits filed before the

Court under oath with any interest either party might have, know of, et cetera. The

Court will rule upon necessary parties at that time.” (RR 1 21, ll 6-11). The court

concluded, “All right. So we determine the parties, make sure we have all parties

before the Court. At that time, subject to whatever interest they might have or

whatever arguments they might have, order the property sold, and then determine
                                         31
ownership of the property.” (RR 1 22 ll 10-14). At a later hearing, after getting

assurance that they would not waive anything, Long and Woodbine again agreed

with the court as to the procedure that would be followed. The court again set out

the procedure to be followed, advised that the remaining dispute at that time was

“the party issue, and the additional other lawsuits.” (RR 2 23-25).

      Long and Woodbine should be found to have waived any complaint

regarding the denial of their special exceptions, but that doesn’t matter since the

court would have acted well within its discretion had it issued such a ruling. “The

trial court has a duty to schedule its cases in such a manner as to expeditiously

dispose of them. For this reason the court is given wide discretion in managing its

docket, and we will not interfere with the exercise of that discretion absent a

showing of clear abuse. No such abuse has been shown here.” Clanton v. Clark,

639 S.W.2d 929, 931 (Tex. 1982).

Reply to Issues 3, 4, and 5

      There was sufficient evidence to support the trial court’s order.

      Reply to Issue 3

             The court correctly ordered the mineral interests jointly owned
             by the parties sold as requested by both sides. It was undisputed
             that Tate and Miken owned an interest and the order correctly
             reflected that it was partitioning all of the property jointly owned
             by the parties.


                                         32
      Reply to Issue 4

              There was sufficient evidence to support the court’s order as to
              Tate and Miken.

      Reply to Issue 5

              Long and Woodbine pled and stipulated that the mineral interests
              were not subject to partition in kind and agreed that they should
              be sold.

      When considering a legal sufficiency challenge after a bench trial, the

reviewing court views the evidence in the light most favorable to the trial court's

findings, crediting favorable evidence if reasonable fact-finders could, and

disregarding contrary evidence unless reasonable fact-finders could not. City of

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). The court must indulge every

reasonable inference that would support the trial court's findings. Id. at 822. "The

final test for legal sufficiency must always be whether the evidence at trial would

enable reasonable and fair-minded people to reach the decision under review." See

Id. at 827.

      In the review of a factual sufficiency complaint, the court reviews all of the

evidence in the record. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). The trial

court’s factual findings will be overturned only if they are so against the great

weight and preponderance of the evidence as to be unjust. Maritime Overseas

Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998). A factual sufficiency challenge

                                         33
from a bench trial is reviewed in the same manner as a jury trial. K.C. Roofing Co.,

Inc. v. Abundis, 940 S.W.2d 375, 377 (Tex.App -- San Antonio 1997, writ denied).

A review of the factual sufficiency from a bench trial involves the review of the

trial court’s findings of fact. When those findings are missing, the reviewing court

presumes that the trial court found all fact questions in support of the judgment.

IKB Industries v. Pro-Line Corp., 938 S.W.2d 440, 445 (Tex. 1997).

      Long begins by arguing that the trial court made certain findings and

conclusions which are in error. (Long brief at 35). Long then refers this Court to

the Order in question. (CR IV 1116). As noted above, no findings of fact were

requested or filed in this case. And the rules expressly provide that “Findings of

fact shall not be recited in a judgment.” Tex. R. Civ. P. 299a. Moreover, even if

these were properly considered the findings of the court, Long’s arguments have

no merit.

      Long complains that the court abated the matter to proceed with

consideration of the proper parties. (Long brief at 35). Long argues that there was

no proper evidence before the court as to ownership at the time it entered its order.

(Long brief at 36). Both sides briefed the issue and provided what evidence they

wanted considered. (CR II 213, 296). And as discussed above, there was never any

question that Tate and Long owned the 7/8 th interest sought to be divided. Long

and Woodbine even recounted the history of Tate and Long’s ownership in their


                                         34
Counterclaim and Plea in Intervention and requested a declaration of co-tenancy.

(CR I 28-39). At the first hearing, Tate’s counsel represented that there was no

question but that Tate and Long owned 7/8th of the working interest in the Young

and thrash leases. (RR 1 5 ll 14-16). In response, Long and Woodbine’s counsel

argued that even if the parties agreed as to their interest, the owners of the

outstanding 1/8th would be affected and needed to be joined. (RR 1 10 ll 18-19).

What Tate and Long owned has never been the issue. In fact, Long even

acknowledged that interest in the brief. (Long brief at 37). Instead, Long only

argued that the outstanding interest owners had to be joined. And even then, Long

and Woodbine appeared to drop that argument when assured that any claims for

contribution would not be waived. (RR 2 ll 17-24).

      Long also contends that the court ordered the entire 8/8 th sold, but that is not

what is reflected in the order. The order provides that Tate and Long are the

owners of the interests attached in Exhibits A and B.         (CR VI 1116). Those

exhibits are the sale documents from Bonanza of its interests to Tate and Long.

(CR VI 1117 & 1122). The court simply ordered that the property owned jointly by

Long and Tate be sold and the proceeds be distributed according to the further

orders of the court. (CR VI 1116).

      Long complains that the order recites that Long and Riverine were the

owners of the interests together with Tate and Miken. (Long brief at 36). Riverine


                                          35
was in fact non-suited from the Gregg County suit before the transfer. (CR I 19).

However, as the court noted that the proceeds would be divided later pursuant to

the further orders of the court, any error in including Riverine would be harmless

error and can be resolved when the issues of contributions and claims are finally

resolved by the trial court.

      Long also complains that the order found the property was not susceptible to

being partitioned in kind. (Long brief at 37). From the very beginning it was Long

that argued the property was not capable of being partitioned in kind. (CR I 116,

188). In his second amended answer Long even stated that if the property was to be

partitioned it “should be by sale, not in kind.” (CR I 188). And Long expressly

represented to the court at one hearing that “We agree that that is not susceptible to

being partitioned in kind.” (RR 1 ll 16-20). While Long acknowledges this

stipulation, he contends that it was not valid without the joinder of the outstanding

interest owners. (Long brief at 38).     Long also argues that while he made the

stipulation, there was no clear and unambiguous stipulation or announcement and

that this stipulation was conditioned upon timing and ripeness.

      A stipulation is “an agreement, admission, or concession made in a judicial

proceeding by the parties or their attorneys respecting some matters incident

thereto.” Shepherd v. Ledford, 962 S.W.2d 28, 33 (Tex. 1988). Courts favor

stipulations to expedite litigation, and as a general rule, valid stipulations are


                                          36
binding on the parties. See e.g. New v. First Nat’l Bank, 476 S.W.2d 121, 124

(Tex.Civ.App. – El Paso 1972, no writ). “Orderly judicial procedure requires that

admissions and stipulations properly comprising the record be observed.          The

reviewing Court is likewise bound by the stipulation of the parties.” Id., at 122-23,

internal citations omitted. The fact is, the stipulation would be binding on Long

and Woodbine since they were the ones who made it, not only in open court, but in

written pleadings.   Moreover, the court was entitled to rely upon the parties’

stipulation as constituting sufficient evidence of that fact and there would be no

error in the trial court making such a finding.

      The evidence was sufficient to support the trial court’s order.

Reply to Issue 6

      The court properly appointed a qualified receiver to handle the sale of
      the jointly owned mineral interests.

      Here, for the first time, Long complains about the court’s appointment of a

receiver to sell the property. As with many of Long’s other issues, this complaint

also requires a showing of an abuse of discretion. See Green, 593 S.W.2d at 764.

The court carefully laid out the procedure it was going to adopt, which was

approved by the parties and implemented by the order. At one of the two hearings,

the court explained that, “So then the order of the Court would be that you’re not

waiving any rights for contributions under the statute because you’re allowing the


                                          37
case – the property to be sold first without making that determination prior to the

sale of the property.” (RR 2 17 ll 20-14). In its order, the court then appointed

Ronnie Swink as receiver to sell the property by public or private sale. (CR VI

1116). No one ever complained to the court about the appointment of Mr. Swink

and the court was well within its discretion to appoint a receiver in this case.

      Rule 770 provides: “Should the court be of the opinion that a fair and

equitable division of the real estate, or any part thereof, cannot be made, it shall

order a sale of so much as is incapable of partition, which sale shall be for cash, or

upon such other terms as the court may direct, and shall be made as under

execution or by private or public sale through a receiver, if the court so order, and

the proceeds thereof shall be returned into court and be partitioned among the

persons entitled thereto, according to their respective interests.” Tex.R.Civ.P. 770.

Here as discussed above, the parties agreed numerous times to the sale of the

property.

      Long complains that Tate failed to make application for a receiver. (Long

brief at 39). As discussed at length above, Tate sued Long for partition of the

property. Long responded that the property could not be partitioned in kind, but

needed to be divided. Tate agreed and the court carefully crafted its order around

what it understood to be the parties’ agreement.




                                          38
      In Green, 593 S.W.2d at 764, the court rejected a similar argument as being

“wholly without merit.” The court then noted that receivers have been appointed in

practically every partition case pursuant to Rule 770. Id. The court concluded that:

“The appointment of a receiver lies within the discretion of the court and may be

invoked whether specifically prayed for or not.” Id. Here, the court acted within its

discretion to appoint a receiver.

      Long complains that the Order did not require the receiver to take an oath or

post a bond as required by sections 64.022 and 64.023 of the Civil Practice &

Remedies Code. Nowehere in the record is it reflected that Long or Woodbine ever

made this complaint to the trial court. The order was entered on July 13, 2014. The

Texarkana Court of Appeals rejected a similar argument in In re Davis, 418

S.W.3d 684 (Tex.App.—Texarkana 2012, orig. pro.). There, the court found that

the complaint had not been made known until well after the receiver was appointed

and had not been preserved under Appellate Rule 33.1(a)(1). Tex. R. App. P.

33.1(a)(1). In another case, the Dallas Court overruled a similar complaint finding

that the record was silent on the issue and further finding that even if a silent

record could be sufficient to show the receiver had not been sworn, the record

failed to show the receiver had assumed his duties. Davis v. Davis, 2013 Tex.App.

LEXIS 5525 (Tex.App.—Dallas 2013, no pet.). The court did not abuse its

discretion in appoint Mr. Swink as receiver.


                                         39
Reply to Issues 7 and 8

      Reply to Issue 7

      The court proceeded properly and the parties stipulated that no issues
      would be waived pending the second phase of the partition proceeding.

      Reply to Issue 8

      The court entered its order after conducting a proper hearing with all
      parties and after the parties agreed on the record that the interests be
      sold and the money deposited into the registry of the court; further,
      the court and the parties agreed that on the record that Long and
      Woodbine were not waiving any claims for contribution.

      Long complains that the court deferred ruling on the interests and

outstanding claims until after the property was sold. (Long brief at 40). Long

complains that under the rules certain matters are required to be determined in the

first phase of the partition. (Long brief at 41). Rule 760 reads, “Upon the hearing

of the cause, the court shall determine the share or interest of each of the joint

owners or claimants in the real estate sought to be divided, and all questions of law

or equity affecting the title to such land which may arise.” Tex.R.Civ.P. 760. Long

argues that the court failed to follow this rule. Long is wrong. As discussed above,

the parties agreed that the property should be sold. As such, there was no question

of law or equity that would affect title. Instead, those questions would affect what

amount of the proceeds each party should receive and this was what was deferred

for a later hearing.
                                         40
      Long cites to Hanrick v. Gurley, 93 Tex. 458, 54 S.W. 347 (1899). While the

court in Hanrick discusses the principles of contribution and the need to adjust the

equities in a partition, it has very little in common with the current case and does

not support Long’s argument. Id., at 475. Hanrick involved the claims of several

heirs to title to lands owned by a relative who died intestate. Id., at 463. As title

was involved, the court had to adjust the equities prior to designating how much of

the land each party was entitled to receive.

      Long’s arguments regarding res judicata based upon Hanrick are equally

misplaced. As discussed above, the parties agreed to this procedure and the court

was careful to make sure it was adhering to that agreement. At one hearing, Long’s

counsel stated, “So the language of the Court makes it clear that that’s not just a

straight partition action where you’re going to parcel it out and sell it, but it goes to

the question also of contribution claims, and the Court assumes jurisdiction over it

under our agreement.” (R 2 17, ll 7-12). The court agreed, advising the parties

that: “All right. So then the order of the Court would be that you’re not waiving

any rights for contribution under the statute because you’re allowing the case – the

property to be sold first without making that determination prior to the sale of the

property.” (RR 2 17 ll 20-14). Tate’s counsel then said, “I just want to make sure

our position if clear. As far as we’re arguing the timing and the urging that the

leases be sold sooner rather than later, we’re not doing so to try to trick or to lead


                                           41
counsel into some trap. If there’s evidence of that, Mr. Clark and I both have said

on the record today that we’ve stipulated that whatever claims they have of any

kind or character, we will say that they can make those claims against these funds.

We are not trying to say or argue that they would have waived anything, and we’re

willing to say that and we do say that at this time.” (RR 2 27 ll 2-12).

       Long relies upon Ellis v. First City Nat’l Bank, 864 S.W.2d 555

(Tex.App.—Tyler 1993, no pet.), for the proposition that whether the property is

susceptible to partition in kind has to be decided in the first hearing. As discussed

above, Long has argued that the property was not capable of being partitioned in

kind from the very beginning. (CR I 116, 188). In his second amended answer

Long stated that if the property was to be partitioned it “should be by sale, not in

kind.” (CR I 188). And Long expressly represented to the court that “We agree

that that is not susceptible to being partitioned in kind.” (RR 1 ll 16-20). So the

court did not have to make that decision – the parties were in agreement that the

property should be sold. And the court was well within its discretion to rely upon

the stipulation of the parties.

       Long argues that matters decided in the judgment from the first phase may

not be considered in the appeal of the judgment from the second phase. (Long brief

at 43). That is true since the first judgment is a final and appealable judgment.

However, here these matters were not decided in the first judgment, but expressly


                                          42
reserved by agreement of the parties to be determined by the court later. Long

complains that a fact issue remains as to whether Tate owes Long money and

argues that Tate is attempting to deny Long his right to relief on his claims for

contribution. (Long brief at 45). But as seen above, Tate expressly agreed and

stipulated that Long has in no way waived his right to contribution. (RR 2 27 ll 2-

12). Long continues to urge that matters decided in the first phase cannot be

appealed from the second judgment. (Long brief at 47). But again, this matter was

not determined in the first phase and was expressly reserved by agreement to be

decided later.

      Long advised the court several times of concerns about liens and potential

claims. (See e.g. RR 1 16-17). Tate agreed that these claims were preserved for

determination later.    (RR 1 17 ll 6-7).       Long and Woodbine’s counsel then

represented, “I think we have reserved Woodbine’s position by filing.” (RR 1 17 ll

9-10). To which the Court replied, “Right, And the Court would so order that you

have.” Id., ll 11-12. Another time, Long and Woodbine expressed concerns that

they not waive any rights, stating “if we could have an agreement that’s somewhat

procedurally and substantively binding by agreeing to that method to do it that

we’re not waiving our claim for contribution.” (RR 2 14 ll 17-19). ). Tate agreed

and Long concluded, “So the language of the Court makes it clear that that’s not

just a straight partition action where you’re going to parcel it out and sell it, but it


                                           43
goes to the question also of contribution claims, and the Court assumes jurisdiction

over it under our agreement.” (R 2 17, ll 7-12). The court also agreed, stating: “All

right. So then the order of the Court would be that you’re not waiving any rights

for contributions under the statute because you’re allowing the case – the property

to be sold first without making that determination prior to the sale of the property.”

(RR 2 17 ll 20-14). So there was no question that all parties agreed and the court

ordered this issue be reserved for a later determination. No title to property was at

issue. The contribution Long claimed was monetary, not a different share of the

mineral estate. (CR I 33; Long brief at 45).

      Long also includes an argument that Tate should have been denied the right

to partition of the property because he had “unclean” hands based on Long’s

claims for contribution. But as shown, Long agreed that the property should be

sold and the funds divided.

      Long cites to Hoover v. Materi, 515 S.W.2d 406 (Tex.Civ.App. – El Paso

1974, writ ref’d n.r.e.). Long is correct that Hoover involved the distribution of

proceeds from a sale. However, Long is incorrect that Hoover supports his

argument. That case involved the distribution of proceeds between two cotenants

following the sale of certain property at a sheriff’s sale. Id., at 407. There the trial

court had already ordered the property sold and the proceeds be divided equally

before one party asked the court to take into consideration a purchase money note


                                          44
and lien the other party has secured against the property. Id. The problem there

was the question of contribution was not timely raised. The court even stated:

         Had the issue been timely raised the trial Court could have required in its
         judgment providing for the Sheriff’s sale, that if Appellant was the
         successful bidder, the first $10,000.00 of the proceeds of the sale allocated to
         Appellee be used to pay off the lien placed on the property of Appellee. As
         noted in 68 C.J.S., Partition, § 144b, p. 239: In actual partition the court
         may declare that an encumbrancer has a valid lien on the interest of one of
         the tenants in common; or, if a sale is found necessary, the court may
         ascertain the amount due and order it paid out of the distributive share of the
         encumbrancing tenant, and this may be done even after the sale in
         partition.

Id. Thus, contrary to Long’s argument, Hoover recognizes that the court may

ascertain the amount due and order it paid out of one co-tenant’s share “even after

the sale in partition.”

         Here the court proceeded properly. The parties agreed the land could not be

partitioned in kind and that it should be sold and the money divided. The court

ordered the property sold and agreed the proceeds were to be deposited into the

registry of the court. The court would then determine any claims for contribution.

(RR 2 13 ll 8-13; 16 ll 1-8; 17 ll 7-12 and 20-14; 23 ll 11-12; 27 ll 3-12; CR VI

1116).




                                            45
Reply to Issue 9

      The court conducted a proper hearing with all parties before entering
      the order.

      Finally, Long complains that he requested and did not get a jury trial. (Long

brief at 49). This Court reviews the trial court’s denial of a jury demand for abuse

of discretion after consideration of the entire record. Mercedes-Benz Credit Corp.

v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996).

      Long pled that whether jointly owned land was capable of partition in kind

was a matter for a jury and requested a jury trial on all matters in partition. (CR I

119). At the first hearing, Tate’s counsel noted this and suggested that by agreeing

to sell the land, as proposed by Long, the parties could expedite matters and avoid

the time and expense related to a jury trial. (RR 1 6 ll 4-25; 7 ll 1-6). Long never

mentioned wanting a jury trial again at either this hearing or the later one.

Additionally, Long did not file any subsequent request or complaint with the court

regarding a jury trial on any matters, nor would any be necessary. As discussed

above, the court simply ordered the interests sold and reserved the question of any

claims for contribution and the proper division of the proceeds until later.

      In Puntarelli v. Peterson, 405 S.W.3d 131, 134 (Tex. App. -- Houston [1st

Dist.] 2013, no pet.), Puntarelli had filed a request for a jury trial and paid the jury

fee. However, there was nothing in the record to indicate that he objected to the

court conducting a bench trial. The appellate court wrote, “We agree with Peterson
                                           46
that Puntarelli’s proceeding to a bench trial without objection waived any

complaint.” Id.

      Long argues that he pled defenses raising issues of fact including Appellees’

waiver of their right to partition; Appellees’ unclean hands; and whether the

properties were susceptible of being partitioned in kind. (Long brief at 50).

However, he never made that request again after Tate agreed to Long’s suggestion

that the property was not susceptible to partition in kind, but would need to be sold.

The parties agreed that the property should be sold and had stipulated that the court

could determine any claims for contribution after the sale. Long argues that he has

been denied his right to a jury, but again, the court proceeded pursuant to the

parties’ agreement and stipulations.

      Even if this issue was properly preserved, which is doubtful, there was no

abuse of discretion. The court acted well within its discretion based upon the

representations of the parties and the lack of any further requests or complaints

relating to long’s jury demand.

                  CONCLUSION AND PRAYER FOR RELIEF
      The trial court always acted with deference to guiding rules and principles

and never abused its discretion in implementing the procedure and issuing the

order appealed in this cause. Additionally, there was more than enough evidence,

including stipulations and representations by Long and Woodbine, to support the


                                          47
rulings and order being appealed. The court had the discretion and agreement of

the parties to order the jointly owned interest sold, the proceeds from the sale

deposited and the claims for monetary contribution deferred until a later time. For

all of the reasons set forth in this brief, Tate and Miken ask that this Court affirm

the judgment of the trial court. They ask for any and all additional relief to which

they may be entitled in law or equity as well.

DATE: January 13, 2015                 Respectfully submitted,
                                       /s/ Deborah Race
                                       Deborah J. Race
                                       Texas Bar No. 16448700
                                       Ireland, Carroll & Kelley, P.C.
                                       6101 S. Broadway, Suite 500
                                       Tyler, Texas 75703
                                       Tel: (903) 561-1600
                                       Fax; (903) 581-1071




                      CERTIFICATE OF COMPLIANCE

      This brief complies with Texas Rule of Appellate Procedure 9.4(i) because it
Contains 12,483 words (excluding the parts of the brief exempted by this rule).

      Signed this 13th day of January, 2015.

                                       /s/ Deborah Race




                                         48
                        CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the foregoing document has
been forwarded to the following persons of record as follows on the 13th day of
January, 2015:

F. Franklin Honea
frank@honealaw.com
The Law Offices of F. Franklin Honea
5949 Sherry Lane, Suite 1700
Dallas, texas 75225

Ron Adkison
ron@adkisonlawfirm.com
The Adkison Law Firm
300 W. Main Street
Henderson, Texas 75652-3109

Charles H. Clark
CHC@charlesclarklaw.com
Law Offices of Charles H. Clark
P. O. Box 98
Tyler, Texas 75710

Bruce A. Smith
bsmith@wsfirm.com
Ward & Smith
P. O. Box 1231
Longview, Texas 75606-1231

Clay Wilder
cwilder@suddenlinkmail.com
Wilder & Wilder, P.C.
200 North Main Street
P. O. Box 1108
Henderson, Texas 75653-1108

                                             /s/ Deborah Race



                                        49
APPENDIX 1
                                    NO. 2013-238

MIKEN OIL, lNC. AND MIKE           §           IN THE 4 lh JUDICIAL
TATE,                              §
                                   ss
      Plaintiffs,                  §
                                   §
v.                                 §           DISTRICT COURT OF
                                    S
                                    ~
LARRY LONG AND RIVERINE            'S
                                    S
                                   'S
                                    S
      Defendants.                  SS          RUSK COUNTY, TEXAS


        DEFENDANT LONG'S ORIGINAL COUNTERCLAIM AND
     PLEA IN INTERVENTION BY WOODBINE PRODUCTION CORP.


      Comes nowLARRY LONG (hereinafter referred to as "Long"), Defendant

herein, and     WOODBINE       PRODUCTION           CORP.(hereinafter referred to     as

"Woodbine"), Intervenor herein,and tile this its Original Counterclaim and Plea in

Intervention by Woodbine Production Corp., and would respectfully show unto the

Court, as follows:

                                          I.
      Discovery is intended to be conducted under Level 3 of TEX. R. CIY. P. 190.1 (i.e.

TRCP.190A).

                                         II.

      This comt has jurisdiction and venue over the subject matter and the persons

named herein. Larry Long is the Defendant herein and files this his Counterclaim to

protect his rights in this pattition action. Woodbine Production Corp. is a Texas

DEFENDANT'S ORIGINAL COUNTERCLAIM AND
PLEA IN INTERVENTION BY WOODHINE PRODUCTION CORP.- Page I

                                         28
corporation, doing business in Kilgore, Gregg County, Texas. Woodbine has a

justifiable interest in this action and Woodbine is entitled to the relief set forth

hereinbelow. Woodbine's claims, as Intervenor, are claims that arise from the same

transaction or occurrence and have common questions of law or fact as Plaintiff's

original claims herein. Woodbine intervenes in this action both as a creditor of

Plaintiffs and the assignee of certain of Larry Long's rights to contribution with

respect to the cotenancy existing on the leases. Inasmuch as this is an action for

partition of a cotenancy in oil and gas leases situated in Rusk County, Texas, and

Woodbine is asserting its rights as against one of the cotenants and claiming an

equitable lien against the interests of Plaintitfs in the cotenancy, the plea in

intervention is compulsory and must be tiled in this partition action. In this regard,

Tex.R.Civ.P. 760 provides "[u]pon the hearing of the cause, the court shall

determine the share or interests of each of the joint owners or claimants in the real

estate sought to be provided, and all questions of law or equity atfecting the title to

such land which may arise." See also Moseley v. HeGlTell, 171 S.W.2d 337 (Tex.

1943); ]-/ulsey v. Keel, 700 S.W.2d 255 (Tex.App.-San Antonio, 1985, writ ref'd

n.r.e.); Yturria v. Kimbro, 921 S.W.2d 338 (Tex.App.-Corpus Christi 1996, no

pet.); White v. Smyth, 214 S. W.2d 967, 974 (Tex. 1948). In fact, Plaintiffs should

have joined Woodbine in the pattition action, but have failed to do so. In fact,

without a determination of \Voodbine's equitable interests affecting Plaintiffs' title

DEFENDANT'S ORIGINAL COUNTERCLAIM AND
PLEA IN INTERVENTION BY WOODBINE PRODUCTION CORP.- Page 2

                                         29
to such lands to be partitioned, this Court should abate the proceedings until

Woodbine is joined as a party. Woodbine is aware that the Court has transferred

Woodbine's claims against Plaintiffs to the COUtts of Gregg County, but files this

intervention action inasmuch as the assertion of its claims must be made in this

partition action. The original tiling of this action in Gregg County preceded the tiling

of Woodbine's original action which the COUlt transferred.

       Jurisdiction of the subject matter is proper in that the amoLlnt in controversy is in

excess of $1 00,000.

                                          III.

      On September 1, 2000, Larry Long and Tate were assigned the mineral

leasehold interests in certain lands situated in Rusk County, Texas (hereinafter

referred to as the "Young Lease" and the "Thrash Lease"). Said leaseholds being

described in Assignment and Bill of Sale from Bonanza Production Company,

recorded in Vol. 2215, p. 342 of the Deed Records of Rusk County, Texas and

Assignment and Bill of Sale from Bonanza Production Company, recorded in Vol.

2215, p. 337 of the Deed Records of Rusk County, Texas. There was no joint

operating agreement signed between Larry Long and Tate and Larry Long and Tate

have been conducting business on the Leases as cotenants only.

      From the time of the commencement of such cotenancy to the present,

Woodbine acted as the designated operator of the wells situated on the Young and


DEFENDANT'S ORIGINAL COUNTERCLAIM AND
PLEA IN INTERVENTION BY WOODBINE PRODUCTION CORP.- Page 3

                                           30
the Thrash Leases with the Texas Railroad Commission. vVoodbine has acted as the

operator conducting operations on such wells at all times, acting as agent for

Assignor and Tate in the common cotenancy estate of the Leases. Woodbine has

rendered services, furnished materials and advanced funds in payment of the

services provided and materials furnished in operations on the wells of the Leases

for the benefit of the common interests of Assignor and Tate.

         For many years, Sunoco, the oil purchaser for the oil produced from the

Thrash Lease, accounted to Woodbine for the proceeds fi'om the sale of production.

Woodbine accounted to Long and Tate for their respective shares of proceeds from

production, net of its operating expensesfor wells on the Young Lease and Thrash

Lease.     Thus arose a course of performance and course of dealing between the

partieswherein Woodbine reimbursed itself from the proceeds received from Sunoco

for Woodbine's advances of expenses and its services performed and materials

furnished in operating the wells on both the Young and Thrash Leases. \Voodbine

would provide Larry Long and Tate with checks and JIBs which netted out such

expenses, This course of performance was well known to Tate.

         Subsequently, Tate directed the oil purchaser to pay him directly for his share

of the proceeds from the sale of production. vVhen such arrangement was changed,

Tate ceased paying and reimbursing Woodbine for its share of the costs of operating
                                                                                           I

the wells and marketing the oi I and gas production tl'om the wells on the Young           I
                                                                                           I_
                                                                                           i


DEFENDANT'S ORIGINAL COUNTERCLAIM AND
PLEA IN INTERVENTION BY WOODBINE PRODUCTION CORP.- Page 4

                                           31
Lease and the Thrash Lease. When Tate directed Sonoco, the oil purchaser, to pay

him directlY,Tate ceased paying Woodbine for such expenses as identified on joint

interest billings. The joint interest billings and a summary of same are attached

hereto as Exhibit "A."

      At this time, Tate is indebted to \Voodbine for a sum in excess 0[$141.432.03

by reason of Tate's failure to pay the joint interest billings to date to reimburse

Woodbine for his share of the costs of operating the wells on the Leases.

      Larry Long has provided Woodbine with an assignment and subrogation

agreement which assigns to Woodbine Larry Long's claims as a cotenant for

reimbursement of expenses, as well as his equitable claim against Tate's leasehold

interest in the Young and Thrash Leases for contribution and reimbursement.

                                       IV.
                 DECLARATION OF COTENANCY OF YOUNG
                          AND TRASH LEASES

      Pursuant to TEX. eiV. PRAC.& REM. CODE §37.00 I et seq, Woodbine seeks a

declaration of its rights against Tate, with respect to Woodbine's rights to

reimbursement and also seeks judicial recognition of an equitable lien and

constructive trust against Tate's undivided, cotenancy interests in the leaseholds of

the Young and Thrash Leases. \Voodbine seeks a declaration that: (1) a cotenancy

relationship has existed between Long and Tate since September 1, 2000 with

respect to the leasehold estates of the Young and Thrash Leases; (2) that Long, as a

IJEFENIJANT'S ORIGINAL COUNTERCLAIM ANIJ
PLEA IN INTERVENTION HY WOOIJHINE PRODUCTION CORP.- Page 5


                                        32
cotenant (through Woodbine), advanced mOl1les for necessary and beneficial

expenses   111   the common interest of the cotenants of the leasehold estates of the

Young and Thrash Leases;        (3) that Woodbinehas a right to reimbursement from

Tate, from the proceeds from the sale of production of oil and gas from the Young

and Thrash Leases (for which Woodbine, as Long's assignee, seeks enforcement of

anequitable lien and constructive trust against Tate's leasehold interest in the Young

and Thrash Leases) for monies spent by Long through \Voodbine necessarily and

beneficially for the common interests of the cotenancy (i.e. monies spent for services

provided and materials furnished to operate the wells on the Young and Thrash

Leases); and (4) that Woodbine, as Long's assignee and subrogee,has a constructive

trust or an equitable lien against Tate's leasehold interests in the Young and Thrash

Leases,so as to reimburse Woodbine for such services and materials and that

Woodbine has been properly assigned such equitable lien by Long.

                                          V.
           REIMBURSEMENT OWEn BY TATE, AS A COTENANT,
       AND CREATION AND ENFORCEM ENT OF AN EQUITABLE LIEN


      As set forth hereinabove, Larry Long and Tate were cotenants, as defined by

the common law of Texas. As such, Woodbine, acting for Larry Long, and by virtue

of the Assignment and Subrogation referred to hereinbelow, is entitled to

reimbursement for monies necessarily and beneficially spent to improve the property



OEFENI)ANT'S ORIGINAL COUNTERCLAIM AND
PLEA IN INTERVENTION BY WOODBINE I'ROI)UCTION CORP.- Page 6

                                           33
in the interest of the common estate. In Neely v. Intercity J\1gmt. CO/p., 732 S. W.2d

644 (Tex.App.-.Corpus Christi 1987, no pet), that court noted the legal relationship

of cotenants, the right of reimbursement for improvements to the common interest,

and the creation of an equitable lien as relief for the failure of a cotenant to

reimburse, as well as the rights of an operator acting as agent for the working

interest participants to recover monies for reimbursement of its advances and

expenses in operating oil and gas wells. That court held in pertinent part:

              Intercity claims in its brief that it was acting as agent for the
      participating working interest owners. An agent is one who is
      authorized by another to transact business or manage some atTair and
      to render an accounting of such transaction. Jorgensen v. Stuart Place
      Water Supply Corp., 676 S.W.2d 191 (Tex. App. -- Corpus Christi
      1984, no writ). It denotes a consensual relationship between two
      patties by which one acts on behalf of another subject to the other's
      control. Tamburine v. Center Savings Association, 583 S. W.2d 942
      (Tex. Civ. App. -- Tyler 1979, no writ). It follows that, as an agent,
      Intercity may recover only what its principal could recover under the
      circumstances. During oral argument, Intercity suggested that it was
      merely a creditor and likened this case to a suit on a sworn account.
      We note, however, that no contract existed between appellants and
      Intercity. We do not believe this action is of a character embraced by
      Tex. R. Civ. P. 185. We hold, therefore, that, if Intercity is to recover,
      it is as an agent for the palticipating co-tenants.

             In Cox v. Davison, 397 S.W.2d 200, 201 (Tex. 1965), the
      Supreme Court iterated the Texas rule that a cotenant who produces
      minerals from common propelty without having secured the consent
      of the other cotenants is accountable on the basis of the value of the
      minerals taken, less the necessary and reasonable cost of producing
      and marketing the same. The law \vill imply a contract on the pat1 of
      one cotenant to reimburse his co-owners for moneys necessarily spent
      for the benefit of the common estate. Shaw & Estes v. Texas

DEFENI}ANT'S ORIGINAL COUNTERCLAIM ANI}
PLEA IN INTERVENTION HY \VOOOBINE PRODUCTION CORP.- Page 7


                                         34
      Consolidated Oils, 299 S. W.2d 307, 313 (Tex. Civ. App. -- Galveston
      1957, writ refd n.r.e.). The court, in Shaw, held that the cotenant,
      incurring speculative expenses in connection with the exploration and
      development of oil, gas and mineral properties, is not entitled to a
      personal judgment against his cotenant for reimbursement, but is
      entitled to be reimbursed out of production if and when production
      results. However, a cotenant has the right to be reimbursed
      propol1ionately for money necessarily and beneficially spent to
      improve the property.

             Shaw explains that a cotenant who spends money tlnecessarily
      and beneficiallytl in the interest of the common estate, has the right to
      be reimbursed proportionately by his associates, and is entitled to a
      personal judgment and an equitable lien on the cotenant's interest in
      the common estate. However, in the case of money speculatively
      spent, a cotenant is entitled to reimbursement out of the share in actual
      production. In Shaw the court said that all expenses necessarily
      incurred by keeping the leases in production were reimbursable, but
      expenditures which did not extend the leasehold estate, i.e., the
      reworking operations which were unsuccessful and resulted only in
      salt water which neither preserved nor benetitted the estate were not
      recoverable. If a cotenant drills a dry hole, he does so at his ovm risk
      and without the right to reimbursement for the drilling cost. Willson v.
      Superior Oil Co., 274 S. W.2d 947 (Tex. Civ. App. -- Texarkana 1954,
      writ refd n.r.e.).

      At all times material to this case, Woodbine has undel1aken the responsibi lity

for maintenance and upkeep of the subject property by operations of the oil and gas

wells on the Leases. Accordingly, it has paid the sLIms for the materials furnished

and services provided described in Exhibit "A" attached hereto to protect and

preserve the common interests of the cotenancy of the leasehold interests in the

Young and Thrash Leases. To date, Woodbine has expended $141,432.03 for

improvements, consisting of the matters described in Exhibit "A" attached hereto.

DEFENDANT'S ORIGINAL COUNTERCLAIM AND
PLEA IN INTERVENTION BY WOODBINE PRODUCTION CORP.- Page     I)



                                         35
These improvements enhanced the value of the subject property by at least

$141,432.03.

         Neither Long (previously) nor Woodbine, has received any contribution or

reimbursement ti'om Tate for such expenditures listed in Exhibit "A" attached

hereto. Accordingly, Woodbine requests recovery of such expenditures and/or

enhancement ti'oll1 Tate or, alternatively, that the value of such contributions be

awarded to Woodbine by allocating an equitable lien and constructive trust against

Tate's leasehold interests in the Young and Thrash Leases of a proportionately

higher value.

         By reason of the foregoing, Woodbine seeks reimbursement from Tate

personally for the sum of$141,432.02 to date, as reimbursement for Tate's share of

monies spent necessarily and beneficially in the interest of the common estate of the

cotenancy on the Young and Thrash Leases, and the recognition and enforcement of

an equitable lien or constructive trust in Woodbine's favor against Tate's leasehold

interest in the Young and Thrash Leases, and judicial foreclosure of said lien and

trust.

                                         VI.
                                 QUANTUM MERUIT

         As set forth hereinabove, Woodbine provided valuable services and materials,

as set forth in Exhibit A attached hereto, which services and materials were



DEFENI>ANT'S ORIGINAL COUNTERCLAIM AND
PLEA IN INTERVENTION IIY WOODBINE PRODUCTION CORP.- Page 9


                                          36
necessarily and beneficially in the interest of the common cotenancy estate of Long

and Tate in the leasehold of the Young and Thrash Leases. Even if., there \vas no
                                         ~




express contract covering Woodbine's reimbursement by Long and Tate covering

the services and materials Woodbine furnished; the services and materials were

provided for the common interest of Long and Tate, and Tate directly benefitted

from Woodbine's advances of monies, services provided and materials furnished in

operating the wells on the Young and Thrash Leases. Tate has accepted the services

provided and materials fUl1lished by Woodbine at all times since September of 2000,

with full knowledge and without objection. In this regard, Tate had been billed over

the years for his share of the costs and expenses incurred by Woodbine in operating

the wells on the Young and Thrash Leases, Tate knew that such services and

materials were for his benefit (i. e. Woodbine operating the wells on the Young and

Thrash Leases, enabled the wells to produce oil and gas, which directly benefitted

Tate through his receiving a share of the proceeds from the sale of production of oil

and gas from such wells). Further, at all times, Tate had reasonable notice that

Woodbine expected compensation from him for the advances Woodbine made,

services provided and materials furnished by Woodbine. Notice of such was given in

the form of joint interest billings addressed and mailed to Tate at all times, as well as

the prior"net-back checks" which he received for his share of the proceeds for

production of the wells in the Young and Thrash Leases, less a deduction of

DEFENDANT'S ORIGINAL COUNTERCLAIM AND
PLEA IN INTERVENTION BY WOODBINE PRODUCTION CORP.- Page 10


                                          37
Woodbine's costs and expenses in operating the wells. Therefore, Tate is stopped to

deny the arrangement or to contest the charges.       Moreover, Woodbine expected

money from Tate for his one-hal f share of the leasehold interest.

      Woodbine is entitled to recover its actual damages from Tate, being the

reasonable value of the services provided and materials furnished, vvhich damages

are in the sum of$141,432.03.

                                       VII.
                                     INTEREST


      Pursuant to TEX.FIN.CODE §302.002, Woodbine is entitled to recover from

Tate interest at the rate of 6% per year on the principal amounts of the credit

extended beginning on the thi11ieth day after the dates on which the amounts are due.

[n this regard, Woodbine is a creditor, as defined by TEX.FIN.CODE §301.002(3) and

Tate is an obligor, as defined in TEX.FIN.CODE §30 l.002( 13), and Woodbine has not

agreed with Tate on a specific interest rate therefore Woodbine may charge and

receive from Tate legal interest as set forth hereinabove. In this regard, interest

commences thirty (30) days after each joint interest bill ing of Exhibit "A" was

delivered to Tate.

                                      VIII.
                                ATTORNEY'S FEES

      Written demand has been made on Tate for payment of the above sums by the

foregoing joint interest billings and by letter dated March 26, 2013. More than thirty

DEFENDANT'S ORIGINAL COUNTERCLAIM AND
PLEA IN INTERVENTION BY WOOJ)B1NE PRODUCTION     CORP.~   Page II


                                         38
(30) days have expired after the above claim was presented, without payment for the

amounts owed being tendered. Woodbine is entitled to recover its reasonable

attorney's fees incurred in this action pursuant to TEX. CIY. PRAC.& REiv1. CODE

§38.001. Further, Woodbine seeks recovery of attorney's fees pursuant to TEX. CIV.

PRAC.& REI',,1. CODE §37.009.

      WHEREFORE, PREMISES CONSIDERED, Plaintiffs are served with

process herein pursuant to TEX.R.Clv.P.21 a. Larry Long and Woodbine Production

Corp. pray that upon final hearing hereof, the Coul1 grant judgment in \Voodbine's

favor, for (I) the declaratory relief set forth hereinabove, (2) damages as set forth

hereinabove, (3) imposition of an equitable lien and/or constructive trust, as set forth

hereinabove, (4) interest, both prejudgment and post-j udgment, on the damages

awarded herein, (5) reasonable attorney's fees as set forth hereinabove, (6) all costs

of court, and (7) such other and further rei ief, both general and special, at law or in

equity, to which Long and \Voodbine may show themselves justly entitled.

                                       Respectfully submitted,

                                       ADKISON LAW FIRM
                                       300 ¥l. Main St.
                                       Henderson, TX 75652-3109
                                       Telephone: (903) 657-8545
                                       Facsimile: (903) 657-6108
                                       ron@adkis 11 wfir .com




DEFENDANT'S ORIGINAL COUNTERCLAIM ANI)
PLEA IN INTERVENTION BY WOOI)BINE PRODUCTION COI{P.- Page 12


                                          39
                                                       State Bar No. 00921090


                                               F. Franklin Honea
                                               State Bar No. 09934300
                                               LA W OFFICES OF
                                               F. FRANKLIN HONEA
                                               5949 Sherry Lane, Suite 1700
                                               Dallas, Texas 75225
                                               (214) 3 61-9494 XI 10
                                               (214) 691-2109 (fax)
                                               frank@honealaw.com

                                               ATTORNEYS FOR PLAINTIFF
                                               WOODBINE

                                   CERTIFICATE OF SERVICE

         I certify that a true and correct copy of the foregoing document has been delivered

 .
bv   f~lcsimile.- a   manner in accordance with the Texas Rules of Civil Procedure.- addressed to

the following:

         Charles H. Clark
         Clark & Porter
         P.O. Box 98
         Tyler, Texas 75710
         Fax: 903-595-1294

         Clay Wilder
         Wilder & Wilder, P.c.
         200 North Main Street
         Henderson, Texas 75652
         Fax: 903-657-5088

DATED this            q-l ~ day of ~ W 2013.


I)EFENI)ANT'S ORIGINAL COUNTERCLAIM AND
PLEA IN INTERVENTION BY WOODHINE PRODUCTION CORP.- Page 13


                                                  40
APPENDIX 2
                                      NO. 2013-238
                                                                            F/t.ED
                                                                       2013 OCT -9 pu
MlKEN OIL, INC. AND MIKE              §          IN THE   4th   JUDICIAL              11   3: 58
TATE,                                 §                                JE~~
                                                                       RU H,yO G= ~n
                                                                             c· l..~:,L"ST eLK
                                      §                                           T}. TEXAS
       Plaintiffs,                    §                               BY
                                                                           ~-DEPUTY
                                     §
v.                                   §           DISTRICT COURT OF
                                     §
LARRY LONG AND RIVERINE              §
                                     ss
       Defendants.                   §           RUSK COUNTY, TEXAS


     DEFENDANT LARRY LONG'S SECOND AMENDED ORIGINAL ANSWER

       Comes now Defendant, Larry Long ("Long"), and files this his Second Amended

Original Answer, and would respectfully show unto the Court, as follows:


                                            I.
                                  GENERAL DENIAL

       1.     Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendant

Larry Long generally denies each and every, all and singular, the material allegations in

Plaintiffs' Second Amended Original Petition (the "Petition") and demands strict proof

thereof, reserving hereby his right to assert any additional defenses which may be

applicable.




DEFENDANT LARRY LONG'S SECOND AMENDED ORIGINAL ANSWER                                         Page I




                                          186
                                           II.
                                    SPECIFIC DENIALS

   A. Jurisdiction and Venue

       2.     Plaintiffs request a partition of leases on land located in Rusk County.

Pursuant to the Civil Practice and Remedies Code Section 15.011, actions for partition

of real property have mandatory venue in the county in which the property is located.

As all of Plaintiffs' claims arise from the same transaction, occurrence, or series of

transactions, thus all of the causes of action raised are governed by the mandatory venue

provision. ClY. PRAC. & REM. CODE ANN. § 15.004. Therefore, mandatory venue in

this matter is in Rusk County, Texas.

       3.     Although addressed separately      111   Defendant's Motion to Abate, Plea in

Abatement and Supplemental Plea in Abatement, the lack of necessary parties in this case

is a jurisdictional issue because the non-party, cotenant leasehold interest owners have an

immediate right of possession in the entire undivided leasehold estate. A decree of

partition is therefore "not binding even on those who are parties" unless all holders of

undivided interests are joined. Mustang Drilling, Inc. et al v. Sam B. Cobb, Jr., Trustee,

et aI, 815 S.W.2d 774, 777 (Tex. App.-Texarkana 1991, writ denied) (citing Ward v.

Hinkle, 8 S.W.2d 641 (Tex. 1928)). This rule has survived the amendments to the rules of

civil procedure regarding necessary parties. ld. Certain working interest owners in the

leasehold estates sought to be partitioned by Plaintiffs are not parties to this lawsuit.

Accordingly, this Court may not partition the Thrash and Young leasehold estates

without the joinder of the necessary parties.

DEFENDANT LARRY LONG'S SECOND AMENDED ORIGINAL ANSWER                                         Page 2




                                           187
           4.   Additionally, Plaintiff Mike Tate and Defendant Larry Long's actions in

developing and producing the Young and Thrash leaseholds have created an implied

waiver against partition. Dimockv. Louise Kadan.e et aI, Trustees, 100 S.W.3d 602,608

(Tex. App.-Eastland 2003, pet. denied). Relevant acts evidencing the implied agreement

not to partition include Defendant Mike Tate's pledging of his undivided interest as

security through a Deed of Trust and joint development of the leasehold estates.

           5.   Further, Defendant Larry Long denies that the ownership interests of

Plaintiffs and Defendant in the Young and Thrash Leases are susceptible to being

partitioned in kind. Developed mineral lands held in cotenancy, as a general rule, are not

susceptible to partition in kind because of the elements of uncertainty which are not

resolvable at a reasonable cost. Moreover, a partition in kind of the Young and Thrash

Leases will result in the market values of the "partitioned leaseholds" being substantially

less than the market value of the whole of the present undivided interests in the

leaseholds; hence, if partition is granted, it should be partitioned by sale. To avoid an

unfair division, the lands are to be partitioned by sale and the proceeds distributed to the

parties.

           6.   As there is no reasonable way to determine how to partition in kind the

minerals at a reasonable cost, the lands should be partitioned by sale, rather than in kind,

and the proceeds distributed according to each party's interest.


                                   III.
                   AFFIRMATIVE DEFENSES AND VERIFIED PLEAS


DEFENDANT LARRY LONG'S SECOND AMENDED ORIGINAL ANSWER                                          Page 3



                                           188
       7.      Defendant asserts the following affirmative defenses:

        a.     Estoppel;
       b.      Failure of consideration;

       c.      Payment;

       d.      Statute of frauds; and
       e.      Waiver.


       8.     There is a defect of parties.

       9.     Plaintiffs have failed to join all necessary parties for the resolution of this

matter. Tex. R. Civ. P. 39. Specifically, Plaintiffs have failed to join the owners of the

one-eighth working interest in the Young and Thrash leases and holders of liens

burdening the cotenants' interests in the leaseholds to be partitioned. It is essential that

the owners of the entire working interest in these leases be joined as their interests in the

leases will be directly and significantly affected by a partition ruling in this action.


       WHEREFORE, PREMISES CONSIDERED, Long prays that Plaintiffs take

nothing by their claims and causes of action set forth in Plaintiffs' Second Amended

Original Petition, that partition be denied, or if partition is granted, the partition be by

sale, that lienholders holding liens against Plaintiffs' interests recover their debts either

by awarding part of Plaintiffs' partitioned leaseholds to them or providing that their liens

be discharged by first applying proceeds awarded to Plaintiffs to the lienholders so that

the indebtedness of Plaintiffs may be discharged and not burden Long's partitioned

leasehold and/or Long's share of proceeds from the sale, and for such other and further

DEFENDANT LARRY LONG'S SECOND AMENDED ORIGINAL ANSWER                                           Page 4




                                              189
relief. both general and special, at law or in equity, to which Plaintiff may show itself

justly entitled.

                                        Respectfully submitted,

                                        ADKISON LAW FIRM
                                        300 w. Main St.
                                        Henderson, TX 75652-3109
                                        Telephone: (903) 657-8545
                                        Facsimile: (903 t6S17 -6108
                                        ron@adkisonla-vvfi TI.com

                                        BY:            cA-"--
                                               Rin AClkison
                                               State Bar No. 00921090

                                        F. Franklin Honea
                                        State Bar No. 09934300
                                        LA W OFFICES OF
                                        F. FRANKLIN HONEA
                                        5949 Sherry Lane, Suite 1700
                                        Dallas, Texas 75225
                                        (214) 361-9494 XI10
                                        (214) 691-2109 (fax)
                                        frank@honealaw.com

                                        ATTORNEYS FOR PLAINTIFF
                                        LONG AND WOODBINE




DEFENDANT LARRY LONG'S SECOND AMENDED ORIGINAL ANSWER                                   Page 5




                                         190
                              CERTIFICATE OF SERVICE


       I certify that a true and correct copy of the foregoing document has been delivered

by facsimile, a manner in accordance with the Texas Rules of Civil Procedure, addressed

to the following:

       Charles H. Clark
       Clark & Porter
       P.O. Box 98
       Tyler, Texas 75710
       Fax: 903-595-1294

       Clay Wilder
       Wilder & Wilder, P .C.
       200 North Main Street
       Henderson, Texas 75652
       Fax: 903-657-5088

DATED this    etc/!: day of   OcJo /zer ;/)
                                         )9J3.
                                                          ~
                                                              .


                                         f~Z£
                                     f




DEFENDANT LARRY LONG'S SECOND AMENDED ORIGINAL ANSWER                                   Page 6




                                         191
 STATE OF TEXAS             §
                            § KNOW ALL MEN BY TIffiSE PRESENTS:
 COUNTY OF GREGG            §


       BEFORE ME, the undersigned authority, personally appeared Larry T. Long, who

 being by me duly sworn, deposed and stated that he is the Defendant in the above styled

and numbered cause, and that the statements set forth in Paragraphs 8 and 9 in the Answer

are true and correct to his personal knowledge.




       Subscribed and sworn to before me on this             9ti. day of /)e~6,e€- , 2013.

                                     ~1~OOdim~
                                         ..                     '       ,        ,        ~


                                               . .£lL.. '           ~


                                         the State of Texas

                                              ,,"~;'e""',.     KAREN DENISE MCKAIN
                                            ~f!
                                              I
                                                  ~" '~~ Notary Public. S~8tao, f Taxas
                                                    .1..
                                             ~~'fJ .~~
                                                               My Commission Expires
                                                                 October 23, 2016
                                                  If, u\




DEFENDANT LARRY LONG'S SECOND AMENDED ORIGINAL ANSWER                                         Page 7




                                          192
