Larry Long and Woodbine Production Corporation v. Miken Oil, Inc. and Mike Tate

ACCEPTED
12-14-00250-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
1/28/2015 4:00:07 PM
CATHY LUSK
CLERK

NO. 12-14-00250-CV
_______________________________________
FILED IN
IN THE COURT OF APPEALS 12th COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF TEXASTYLER, TEXAS
1/28/2015 4:00:07 PM
______________________________________
CATHY S. LUSK
Clerk

LARRY T. LONG AND WOODBINE PRODUCTION CORPORATION

Appellants,

v.

MIKEN OIL, INC. and MIKE TATE

Appellees.
______________________________________________

REPLY BRIEF OF APPELLANTS, LARRY T. LONG
AND WOODBINE PRODUCTION CORPORATION

TO THE HONORABLE COURT OF APPEALS:

LARRY T. LONG (hereinafter individually "Larry Long”) and

WOODBINE PRODUCTION CORPORATION (hereinafter individually

“Woodbine”) (collectively referred to as “Long”) file this their Reply Brief of

Appellants, and would respectfully show unto the Court, as follows:

I. INTRODUCTION

On January 13, 2015, Miken Oil, Inc. and Mike Tate (“Appellees”) filed

their Brief of Appellees Miken Oil, Inc. and Mike Tate with this Court. Several

REPLY BRIEF OF APPELLANTS, LARRY T. LONG AND WOODBINE PRODUCTION CORP. – Page 1
statements and conclusions set forth in that Brief of Appellees are the subject of

this Reply Brief, in that such statements and conclusions are either incorrect and/or

misleading.

II. ALL COTENANTS OF THE POSSESSOEY
MINERAL ESTATE MUST BE JOINED

Throughout the Brief of Appellees, and especially in Reply to Issue No. 1 (pp.

19-29), Appellees contend that a court may partition less than the whole of a

possessory estate in real property (such as partitioning a 7/8ths working interest in

the mineral leasehold estate of two tracts, which Appellees have purportedly sought

to partition in this action). No statute or case authority is cited by Appellees to

support such argument (Brief of Appellees, p. 22). Instead, Appellees quickly

change the argument to a question of whether the district court had jurisdiction over

the partition action, absent joinder of all of the cotenants. That argument is

sufficiently addressed in the Brief of Appellant and Appellees’ response is also

addressed below. In other words, Appellees evaded addressing the key issue in this

appeal.

In arguing this “less than whole partition” contention, Appellees resort to

making a distinction without a material difference to this case. Appellees argue that

Carper v. Halamicek, 610 S.W.2d 556, 558 (Tex. Civ. App.--Tyler 1980, writ ref'd

n.r.e.) refers to partitioning tracts of land, and this case is distinguishable because it

addresses an “oil and gas interest.” (Brief of Appellees, p. 23) Basic law on real

REPLY BRIEF OF APPELLANTS, LARRY T. LONG AND WOODBINE PRODUCTION CORP. – Page 2
property establishes that a mineral leasehold interest (i.e. the subject of partition in

our case) is a fee simple determinable mineral estate of a tract or tracts of land and

that lessees holding under oil and gas leases covering the entire 8/8ths of the

mineral estate of the tract of land are the “cotenants,” inasmuch as each holds an

immediate right to possession to every part of the mineral leasehold estate. Texas

Oil & Gas Corp. v. Ostrom, 638 S.W.2d 231 (Tex.App.—Tyler 1982, writ ref’d

n.r.e.).

A. APPELLEES’ “RED HERRING” CONSTRUCTION OF OSTROM

Appellees do not acknowledge the authority of Ostrom, id. on the above

subject, but evasively contend that Ostrom, id. is their authority that only the

persons who own interests in the “specific property interest which a plaintiff seeks

to partition” in a partition action need be joined. In making such argument,

Appellees have taken this Court’s language in Ostrom, supra totally out of context.

This Court particularly held as follows:

Appellee L. E. Ostrom (Ostrom) sued appellant Texas Oil &
Gas Corp. (TXO) for a partition of the mineral leasehold estate in
258.34 acres of land in Rusk County. Ostrom alleged that he owned
an undivided working interest in the mineral rights in, upon, and
under 139.63 acres of this tract, and that TXO owned the same type of
interest in the remaining 118.71 acres. Ostrom pleaded that he and
TXO were the sole owners of the possessory rights in the minerals
in this tract, and prayed that the court appoint Commissioners to
make a partition in kind of the mineral leasehold estate.

....

REPLY BRIEF OF APPELLANTS, LARRY T. LONG AND WOODBINE PRODUCTION CORP. – Page 3
 Appellant's first point of error is that the trial court erred in
overruling appellant's plea in abatement because the mineral owners
and lessors of the oil, gas, and mineral leases were not joined and
were "necessary" parties. Appellant's position is that a partition of
the leasehold estate involving only the oil, gas, and mineral leasehold
estate owners will impair the lessor's ability to protect his royalty
interest and will leave either or both of the leasehold estate owners
subject to a substantial risk of incurring double, multiple, or otherwise
inconsistent obligations under the oil and gas leases. We overrule
appellant's first point of error.

....

Article 6082, Tex. Rev. Civ. Stat. Ann. (Vernon 1970) [now
codified and modified in TEX. PROP. CODE 23.001] provides:

Any joint owner or claimant of any real estate or of any
interest therein or of any mineral, coal, petroleum, or gas lands,
whether held in fee or by lease or otherwise, may compel a
partition thereof between the other joint owners or claimants
thereof in the manner provided in this chapter.

....

[The following language in bold is the language in Ostrom, supra
which is quoted out of context in the Brief of Appellees]

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. 2 The property
sought to be partitioned in the case at bar is the leasehold estate in the
oil, gas and other minerals. Thus, we must decide who are the owners
of the leasehold estate in the oil, gas, and other minerals, and hence,
who must be joined.

FOOTNOTES

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 2 Rule 756(a) and art. 6083, Tex. Rev. Civ. Stat. Ann. (Vernon 1970)
provide, inter alia, that in a partition action the plaintiff's petition shall
state the "names and residence, if known, of each of the other joint
owners, or joint claimants, of such property."

In Texas Co. v. Cain, 177 S.W.2d 251, 253 (Tex. Civ. App. --
Texarkana 1944, writ ref'd w.o.m.), a case concerning an oil and gas
leasehold estate partition, the court, quoting from Henderson v.
Chesley, 273 S.W. 299, 304 (Tex. Civ. App. -- 1925) aff'd per curiam,
292 S.W. 156 (1927) said:

It is clear to our minds that the Legislature intended to
use "joint owner" in its broadest sense. In that sense he is not
necessarily one owning the fee simple, or one having in the
property the highest estate it will admit of, but is one who
owns any interest in real estate entitling him to joint
possession and use. (Emphasis added.)

The lessor of a mineral estate retains a nonpossessory
reversionary interest in the minerals, which is a possibility of reverter.
42 Tex. Jur. 2d Oil and Gas §§ 176, 177 (1963). . . . Lessors of a
mineral estate and royalty interest owners, therefore, are not "joint
owners" of the mineral leasehold estate for the purposes of art. 6082,
the partition statute.

The purpose and effect of a partition of an estate in real property is to sever

the right of immediate possession of the whole of the possessory estate in the tract,

such that each cotenant is vested with the exclusive immediate right of possession to

a separate part of the tract, free from the rights of the other cotenants to possess such

severed part. TEX. PROP. CODE 23.004(a) provides as follows:

§23.004. Effect of Partition

(a) A person allotted a share of or an interest in real property in
a partition action holds the property or interest in severalty under the
conditions and covenants that applied to the property prior to the

REPLY BRIEF OF APPELLANTS, LARRY T. LONG AND WOODBINE PRODUCTION CORP. – Page 5
 partition.

The term “severalty” is defined in Webster’s New Universal Unabridged Dictionary

(2d Ed) as “Law. a. (of an estate, esp. land) the condition of being held or owned by

separate and individual right. b. an estate held or owned by individual right.”

With that said, the very nature of a partition action requires the joinder of all

cotenants; at least that is what this Court held in Carper v. Halamicek, 610 S.W.2d

556, 558 (Tex. Civ. App.--Tyler 1980, writ ref'd n.r.e.).

B. TEXAS PRECEDENT REQUIRES ALL COTENANTS OF THE POSSESSORY ESTATE
IN THE REAL PROPERTY TO BE JOINED IN A PARTITION ACTION

As set forth in the Brief of Appellants, numerous opinions of Texas courts

have addressed this issue and all have concluded that all cotenants of possessory

interests in real property must be made parties, not a select few of the cotenants, and

only then, if selected by the plaintiff seeking partition.

In Ward v. Hinkle, 8 S.W.2d 641 (Tex. 1928), the Supreme Court held “[t]hat

all tenants in common are indispensable parties to a suit for partition is well settled

in this court. . . ”.

In Maxwell’s Unknown Heirs v. Bolding, 11 S.W.2d 814 (Tex.App.—1928,

no writ), that court held, as follows:

Since the cause must be reversed, we call the attention of
counsel to the fact that the petition alleges that the parties appellees
and appellants only own an undivided one-half interest in one of
the tracts of land sought to be partitioned. The rule seems to be
well established that, before property can be partitioned, all of the

REPLY BRIEF OF APPELLANTS, LARRY T. LONG AND WOODBINE PRODUCTION CORP. – Page 6
 joint owners or cotenants must be made parties, either plaintiff or
defendant, in order that the court ordering partition may
determine the interest each party has therein and make a proper
distribution of the property. . . .

This Court in Carper v. Halamicek, 610 S.W.2d 556, 558 (Tex. Civ. App.--Tyler

1980, writ ref'd n.r.e.) held:

Due to the nature of partition actions, and in light of rule 757, it is
our view that it is absolutely necessary to have all owners of real
property before the court when the property is partitioned. As
observed by the court in Maxwell, supra at 815, "(j)oint owners …
must be made parties … in order that the court ordering partition may
determine the interest each party has therein and make a proper
distribution of the property.

In Mustang Drilling, Inc. v. Cobb, 815 S.W.2d 774 (Tex.App.—Texarkana 1991,

writ denied), that court held:

Cobb correctly asserts that an attempted partition of the whole
of a tract of land, where all the owners are not joined as parties, is not
binding even on those who are parties. Ward v. Hinkle, 117 Tex. 566,
8 S.W.2d 641 (1928); . . . . This rule is grounded in statutory law and
has survived the amendments of our rules of procedure regarding
necessary parties.

In Gilbreath v. Douglas, 388 S.W.2d 279 (Tex.Civ.App.— Amarillo 1965, writ ref’d

n.r.e.), that court held:

The general rule is that partitioning may not be enforced as to a
portion of the common property, and the suit must seek a division
of the whole thereof.

In Henderson v. Chelsey, 273 S.W. 299 (Tex.App.—1925), aff’d, 292 S.W.

156 (Tex. 1927), that court provided the reasoning behind the rule:

REPLY BRIEF OF APPELLANTS, LARRY T. LONG AND WOODBINE PRODUCTION CORP. – Page 7
 "The right of a joint owner or claimant of any estate to compel
a partition thereof between the other joint owners or claimants 'is
recognized by our statute in the broadest terms.' Article 3606, Rev.
Stats. 1895; article 6096, Rev. Stats. 1911; Morris v. Morris, 45 Tex.
Civ. App. 60, 99 S.W. 872."

....

"'Partition' * * * means the act or proceeding through which
two or more co-owners cause the thing to be partitioned to be divided
into as many shares as there are owners, and which vests in each of
such persons a specific part with the right to possess it free from a
like right in other persons who before partition had an equal right
to possess."

In the case of Tieman v. Baker, 63 Tex. 641, 643, the Supreme
Court held:

"The very purpose of partition is to enable one, holding or
entitled to hold with others an undivided possession, to sever that
possession and right, and thenceforth to hold an exclusive
possession of a specific part of the property, which before
partition all the co-owners had the equal right to possess."

Texas law holds that all cotenants of a possessory estate in real property are

indispensable parties in a partition action, regardless whether the issue is viewed as

jurisdictional or as prudential. “Cotenants” has been defined as a “description of

the relationship between estates.” In re Marriage of Thurmond, 888 S.W.2d 269

(Tex.App.—Amarillo 1994, writ denied), where “two or more persons share the

unity of exclusive use and possession of property held in common”. Laster v. First

Huntsville Properties Co., 826 S.W.2d 125 (Tex. 1991). “Cotenants” cannot be

limited in partition to include only a fractional part of those persons who share the

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unity of exclusive use and possession of the possessory estate, because, by

definition, “cotenants” includes all persons who have a present right to possession

of the property.

In Burkitt v. Broyles, 317 S.W.2d 762 (Tex.App.—Houston 1958, writ ref’d

n.r.e.), that court held:

The law is well settled that before property can be partitioned,
all of the joint owners or co-tenants must be made parties to the
proceeding. . . . All owners of the property entitled to possession or
having a possessory interest in the land are necessary parties to a
partition of land.

C. IS THE ISSUE OF INDISPENSABLE PARTIES A MATTER
OF A COURT’S JURISDICTION OR ITS PRUDENTIAL POWER?

Again, as to the argument that the issue of lack of indispensable parties is

jurisdiction or prudential, the Brief of Appellants addresses the subject as it

pertains to partition and like actions. The only opinion which Appellees cite as its

authority that “the lack of necessary parties to a partition does not deprive the court

of subject matter jurisdiction” (Brief of Appellees, p. 22) is Hudson v. Sweatt, 2014

Tex.App. LEXIS 12660 (Tex.App.—El Paso 2014, no pet.). That opinion is not

authority for Appellees’ proposition. While it is true that in the underlying action

under its review, the plaintiff filed an action in trespass to try title to property and

to partition the proceeds from a sale of the property, and that a plea in abatement

was filed, stating that the district court should have abated the case because an

indispensable party was not served, Appellees fail to mention that such court

REPLY BRIEF OF APPELLANTS, LARRY T. LONG AND WOODBINE PRODUCTION CORP. – Page 9
found “all co-owners of the property and heirs to the estate were made parties

to the suit.” Also, that opinion stated that the record included an Amended Loss

Return of Service Affidavit stating that service had been obtained upon the alleged

indispensable party; the court’s entry of judgment stated that the so-designated

indispensable party had failed to appear and answer and wholly made default; and

the opinion quoted the trial court’s addressing the issue at trial and its holding that

it was unpersuaded by the arguments that service had not been effected on the

alleged indispensable party. The appellate court went on to state that “[t]he

argument that this court could not proceed with[out] Jason Hudson fails for several

reasons. First, there was evidence from which the district court could decide that

the return of citation by Mr. Clabough was credible and that Jason Hudson had

indeed been served. We will not disturb that factual finding.” Thus, the opinion

does not begin to support Appellees’ proposition. The appellate court went on and

held that the appellant had made no showing as to why Jason Hudson was an

indispensable party, which is contrary to the circumstances before this court.

III. THE PARTIES JOINED IN THIS ACTION DO NOT
EVEN HOLD THE 7/8THS WORKING INTERESTS

Appellees contend “[h]ere Tate and Long were the only owners of the

property to be affected, namely the 7/8ths working interests.” (Brief of Appellees,

p. 25) and “[t]here was never any dispute as to the ownership of the 7/8ths

interest.” (Brief of Appellees, p. 30) Such contentions by Appellees are not true.

REPLY BRIEF OF APPELLANTS, LARRY T. LONG AND WOODBINE PRODUCTION CORP. – Page 10
One, Tate owns no working interest in the leases; he conveyed his interest to

Miken in 2010. (I SCR 47) Second, the following excerpts from the Brief of

Appellants show that there is a substantial disagreement on such point and in fact

more than 1/8ths of the cotenants were not served or joined by Appellees:

Plaintiffs may have concluded that such Remaining Owners only hold
a 1/8th working interest, but the Remaining Owners may disagree and
they are entitled to be heard in the partition action to establish their
share or interest. TEX.R.CIV.P. 760. In fact, parties holding more
than 1/8 of the leasehold interest were not joined.

(Brief of Appellant, p. 36)

Appellees therein judicially admitted that parties owing a 1/8th
undivided interest in both the leaseholds of the Young and Thrash
Leases were not being joined in the action (the “Remaining Owners”).
(1CR 7, 8, 9) Bonanza’s contract of sale with Long and Tate
contracted to convey a .875 working interest in each lease. (2CR 254,
260) (See also 1RR 5-7)

(Brief of Appellant, p. 8)

Appellees made much of the difference that Long and Tate acquired
their respective undivided interests in the leasehold estates by the
same assignments; whereas the Remaining Owners were assignees of
a prior assignor of the entire working interests. In fact, such argument
is wrong. One of the Remaining Owners is the assignee of Larry
Long, who was assigned part Long’s leasehold interest, but he was
also excluded by Appellees. (1SCR 42)

(Brief of Appellant, p. 31)

In Long’s Reply to Plaintiffs and Counter-Defendant’s Brief in
Support of Additional Parties Being Unnecessary Under T.R.C.P.
39(a), and by its Exhibit “A,” (2CR 296, 300, 317-331), Long gave
the trial court and Appellees notice of the identities of all persons then
holding working (leasehold) interests in the Young and Thrash Leases

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 (the “Remaining Owners”).

(Brief of Appellant, p. 10)

Thus, even under Appellees’ theory of proper joinder of parties, the Clerk’s

Record establishes that not even all parties owning the 7/8ths working interests in

the oil and gas leases were joined, and trial court’s ordering partition is improper

even under Appellees’ theory of proper parties.

IV. LONG DID NOT STIPULATE TO THE TRIAL COURT’S
SUBJECT MATTER JURISDICTION OF THE PARTITION ACTION

On pp. 1-2 and 14 of Brief of Appellees, Appellees make an argument that

by reason of certain allegations found in the Counterclaim of Larry Long and the

Plea in Intervention of Woodbine Production Corp. (CR I 28), Long admitted that

the District Court had subject matter jurisdiction over the partition action and

implicitly, such judicial admission would trump Texas law. Subject matter

jurisdiction of a court cannot arise by a “stipulation” to such jurisdiction, if such

jurisdiction does not otherwise exist. In Basic Energy Service, Inc. v. D-S-B

Properties, Inc., 367 S.W.3d 254 (Tex.App.—Tyler 2011) pet. dism’d, Basic

Energy Servs. v. D-S-B Props., 2012 Tex. App. LEXIS 3881 (Tex. App. Tyler,

May 16, 2012), that court held:

While parties may stipulate to facts, neither courts nor the
parties are bound by stipulations to legal conclusions to be drawn
from the facts of the case. See Caprock Inv. Corp. v. F.D.I.C., 17
S.W.3d 707, 713 (Tex. App.—Eastland 2000, pet. denied); Martinez
v. Hardy, 864 S.W.2d 767, 770 (Tex. App.—Houston [14th Dist.]

REPLY BRIEF OF APPELLANTS, LARRY T. LONG AND WOODBINE PRODUCTION CORP. – Page 12
 1993, no writ); Cartwright v. MBank Corpus Christi, N.A., 865
S.W.2d 546, 549 (Tex. App.—Corpus Christi 1993, writ denied).

The second obvious reply to such contention is that the particular allegation

or stipulation in Long’s pleading noted above (i.e. Long’s Counterclaim and

Woodbine’s Plea in Intervention) reads “[t]his Court has jurisdiction and venue

over the subject matter and persons named herein.” (CR I 28) Long’s Counterclaim

was an action for equitable contribution against a cotenant, and Woodbine’s Plea in

Intervention included an action in quantum meruit and, being assignee of Long, for

contribution against Appellees. Neither Long nor Woodbine pled for partition. The

District Court had subject matter jurisdiction of such counterclaims and claims in

the pleas in intervention, irrespective of whether it had jurisdiction over the

partition action. Again, at the time, Appellees were moving the Court to strike the

plea in intervention. None of the causes of action alleged in the counterclaim or

plea in intervention were dependent upon the viability of a partition action. Long

did not allege, admit or stipulate that the trial court had subject matter jurisdiction

over the partition claims of Appellees. This should have been obvious to

Appellees, in light of Longs’ prior answer and Long’s plea in abatement and

further briefing, raising again and again, the issue of the lack of jurisdiction of the

trial court to go forward on the partition action in the absence of all necessary

parties.

REPLY BRIEF OF APPELLANTS, LARRY T. LONG AND WOODBINE PRODUCTION CORP. – Page 13
 V. LONG DID NOT STIPULATE TO APPELLEES’
ERRONEOUS ORDER OF PROCEEDING

In the Brief of Appellees, Appellees suggest that Long somehow stipulated

and agreed that the district court should go forward with the sale of the property to

be partitioned, and to delay deciding the many issues to be determined in the first

judgment after the entry of the first final judgment. The Record does not support

any such stipulation (III SCR 475, 476, 477). Again, such a stipulation would not

be binding on the parties or the courts. Basic Energy Service, supra. Appellees do

not quote such a stipulation in their Brief because there is none.

Rather, as noted in the Brief of Appellees, Long always expressed concern

about the timing of matters and expressed the fear of the bar of res judicata, if “first

judgment” matters were deferred until after the order of sale. Expressing doubts

about the appropriateness of the order of matters to be taken up by the court is not

a stipulation. The Record of the second hearing on discovery referred to in the

Brief of Appellees does not show any stipulation:

MR. ADKISON: Your Honor, the stipulation that we made is
clear, and I don't believe that I've used the word lien. But in the
statute itself, which we cite in our response, it's clear that -- and it is
the language that the Court used in making its decision that forces us
to be cautious is, at the first hearing on the matter, it's the duty of the
Court to determine the claims -- shared claims of each of the joint
claimants and all questions of law that equitably affect title to the
land. Questions might include the right of the property to receive
contributions from the others for expenses incurred in maintaining or
improving the property, as well as whether or not -- or whether or not
somebody is to receive a specific tract. . . . (II RR 16-17)

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 THE COURT: I understand what you're saying.

MR. ADKISON: Yeah.

THE COURT: 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.

MR. HONEA: Your Honor, I would say that they've had
cases where in the opinions, and I'm looking at one of them out
of Tyler, 1993, and they basically said it's a matter of res
judicata. If these matters are not litigated in the first judgment,
it's res judicata. So we need very strong language that they are
waiving any claim, including res judicata, if we're going to
postpone this determination of contribution. Because there are
several cases here that say if you wait until that second
judgment, after the sale has occurred, we've waived our claim,
and we're barred by res judicata. . . . (II RR 17-18)

MR. ADKISON: I simply refuse to step into the trap.
The question is not whether or not we're going to sell the leases,
the question is the timing of the -- when the sale of the lease
occurs. And the cases say that the sale of the leases, of which
we've agreed ought to be sold, but the question is, under the
cases, the timing of that has got to be after the determination of
what the claims for contribution between the parties are. It's
that simple. . . . (II RR 19)

MR. ADKISON: . . . The timing of it has got to be
according to what the law says, and that's what the stipulation
is. . . . (II RR 26)

THE COURT: All right. I'll review all of this and try to
be real succinct and particular in writing up what I believe,
other than what's heretofore ordered, I'll review the sell matter.
(II RR 26-27)

The only statement which could be considered a stipulation or admission is

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the statement:

THE COURT: Do y'all agree that the property is not subject to
being partitioned in kind?

MR. HONEA: We agree that that is not susceptible to being
partitioned in kind.

THE COURT: Okay.

MR. HONEA: We don't necessarily think it's ready to be
partitioned though.

(RR I 11).1 The above statement is not an agreement to take procedures out of time

so as to subject Long to the res judicata bar. As noted, Long expressed concern

about the timing, and it was the trial court which restated the agreement as follows:

THE COURT: I understand. I'm just -- okay. So that's at least
one step we can get to. So y'all are -- both 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. (I RR 11-12)

....

THE COURT: All right. And I'm -- I may be talking on a
different level than what y'all are. The issue that I'm trying to resolve
is whether or not -- they are saying that all necessary parties are not
joined because anyone whose ownership interest could be affected
has to be joined in the lawsuit. (I RR 13)

....

1
The language, including quotations, set forth in the Brief of Appellees includes citations referencing the Reporter’s
Record which do not appear at the locations noted in the Reporter’s Record. In light of such inconsistencies, Long
has quoted directly from the Reporter’s Record and has included the proper citation reference to each quotation.

REPLY BRIEF OF APPELLANTS, LARRY T. LONG AND WOODBINE PRODUCTION CORP. – Page 16
 THE COURT: I don't think is -- is there any dispute in that
ultimately that would be something resolved by the Court? I don't
think there's -- I mean, I understand the law to be that, too. I mean,
y'all agree on that? All right. My question -- and I want to make sure
that we're following along okay. Are you saying that the Court has to
make that determination before it orders a sale?

MR. HONEA: In fact, Your Honor, there's cases -- I couldn't
believe them when I read them, because they distinguish between the
first trial and the second trial. They had two co-tenants, and they didn't
raise the issue of liens. And one of the co-tenants had a lien, had a
promissory note and a purchase money mortgage on his interest. And
since the Court didn't decide it in the first trial, that that lien was
going to affect the property, the Court just split the property even,
50/50, between the two of them, and then there was a sale. And then
the other party said, wait a second, Your Honor, if that guy has a lien
against his property for $10,000, that affects the value. And they took
it up on appeal, and the Appellate Court said, too late, res judicata.
You had to raise that lien issue in the first trial. . . . (I RR 15-16)

....

THE COURT: Well now, that's why I'm agreeing on 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. (I RR 18-19)
....

THE COURT: Well, if it's on the record, it's on the record. 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.

MR. ADKISON: Your Honor, would the parties be allowed to

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 submit a brief on these party issues?

THE COURT: Yeah. Yes, because I think that's the best --
that's the legal issue. Right now, as I see it, that's the only legal issue
for the Court.

Then the next -- after that -- after that's determined, then the
Court then have those -- any necessary -- further necessary parties
before it. The Court will determine at that -- the next would be the
ruling of the Court at this time that this Court then would take up
all matters concerning these two leases and these parties, any
ownership issues, any matters that were owed by either party,
what's owed by any party, offsets, contributions, debts, whatever
it might be through prior operations, through -- y'all
understand? I don't -- maybe not know everything that would be
…

MR. HONEA: Do you want interest billings?

THE COURT: Billings, whatever. And then we need to
determine that. And -- but I think -- well, and I think once the Court
has all of the parties before it, he can order the property be sold. And
then the Court, once we get the proceeds, the Court determines how
the proceeds are to be divided. Everybody agree with that?

MR. CLARK: We agree with that, Your Honor.

[No response from Long’s counsel]

THE COURT: 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 ownership of the
property.

MR. CLARK: How soon do you want us to file our position
with the Court? (I RR 21-22)

In other words, the trial court outlined of proceedings to follow in two

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separate orders of proceedings; none of the discussion at the hearing can be

considered a stipulation or admission on the part of Long that the court should

proceed in the case out of order, and to first order the sale of the property to be

partitioned, and later determine the shares each party owned in the partitioned

estate, the burdens of each share, etc.

VI. LONG DID PRESERVE ERROR IN THE TRIAL COURT’S DENIAL
OF LONG’S SPECIAL EXCEPTIONS AND ORDER FOR RECEIVERSHIP

In reply to Issue No. 2, Appellees contend that Long did not preserve the

issue of the court’s denial of the special exceptions for review. It is clear from the

record that Appellees’ petition did not include the necessary allegations required to

assert a partition claim on real property. TEX.R.CIV.P. 756. It is also clear that

special exceptions were timely filed, and they were set for hearing. At the hearing

the court took such matters under advisement.

THE COURT: Yeah. And at that time then we'll probably set
another hearing, if necessary. All right. And all -- and then -- it's the
Court's position then that these other ancillary matters that have been
filed today, the Court takes care of all of that with this ruling with the
understanding I'll -- as far as Motions to Strike, Motions to Transfer
Venue, and all of that? Y'all in agreement with that, that I'll go ahead
and take care of everything? (I RR 23)

Then, out of the blue, and during the discovery of the case, the court signed

an order (submitted by Appellees’ counsel) (which was in effect a final judgment),

without any motion, hearing, or notice on the entry of such judgment. Inasmuch as

there was no notice of the court’s intention to enter a judgment--the only notice

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being of the court’s intention to deny Longs’ plea in abatement--the abrupt entry of

such a judgment clearly falls within Guerrero v. Salinas, 2006 Tex.App. LEXIS

8562 (Tex.App.—Corpus Christi 2006, no pet.). Long did preserve their error, in

that Long did object to the court in the letter to the court dated February 21, 2014,

regarding the submission of the Order by Appellees, including referencing matters

addressed in the special exceptions. (III SCR 475) Long also timely filed a notice

of appeal, and included such error as Issue No. 2 in their Brief. TEX.R.CIV.P. 301

provides that the judgment of the court shall conform to the pleadings, and it is a

proper subject for a point of error in an appeal to argue that the pleadings do not

support a claim for partition. Long were not required to file a motion for new trial

to preserve such issue on appeal. TEX.R.CIV.P. 324(a) and (b). Likewise, a request

for findings of fact and conclusions of law would not require the trial court to

address the special exceptions or the lack of proper pleadings to support an action

in partition. TEX.R.CIV.P. 296.

Likewise, in reply to Issue No. 6, Appellees contend that Long did not

complain of the court’s error with respect to granting the receivership. Not so; see

letter of February 21, 2014. (III SCR 475, 477)

VII. LONG DID PRESERVE ERROR IN THE TRIAL
COURT’S DENIAL OF A TRIAL BY JURY

In reply to Issue No. 9, Appellees contend that despite the fact that Long

timely filed a request for jury trial and paid the jury fee, Long waived trial by jury

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by not continuing to demand a jury trial. Appellees forget that there was no trial

(bench or jury) in this action—only the court signing an order submitted by

Appellees. Inasmuch as the order was entered without any motion or notice of

hearing and no trial was set and during a time when the court was ruling on

discovery matters, there was no basis for Long to object to the trial court’s

unilateral action. In Puntarelli v. Peterson, 405 S.W.3d 131, 134 (Tex.App.—

Houston [1st Dist.] 2013, no pet.), the court found that a party proceeding to a

bench trial without objection, waived the complaint. But, as noted, there was not

even a trial setting in this action.

Long did object to the proposed order. (III SCR 475, 476-477) The last

hearing before the trial court in this action was on discovery motions, and the trial

court’s ruling on such motions gave no warning that the court intended to deny

Long a trial, much less a trial by jury. Then, out of the blue, Long’s counsel

received the signed court’s Order (i.e. the final judgment), in an envelope from

Appellees’ counsel, in the mail fifteen days after it was signed, with no notice from

the clerk of the court as to the court’s action, contrary to TEX.R.CIV.P. 306a(3).

Again, making a request for findings of fact and conclusions of law would not

require the court to address the court’s denying Long a trial by jury. Such error is

properly preserved by Long including the point as an issue presented in the Brief

of Long.

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 WHEREFORE, PREMISES CONSIDERED, Long pray that this Court

reverse and render the Order (App 1) in its entirety as being void (either entered

without jurisdiction or without prudential authority), reverse and render all orders

found within the Order, or in the alternative, reverse and remand all orders within

the Order, reverse and render the Court’s denial of Long’s and Woodbine’s plea in

abatement (App. 2), or in the alternative, reverse and remand the denial of the plea

in abatement, and for such other and further relief, both general and special, at law

or in equity, to which Long may show themselves justly entitled.

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 Respectfully submitted,

LAW OFFICES OF
F. FRANKLIN HONEA

5949 Sherry Lane, Suite 1700
Dallas, Texas 75225
(214) 361-9494 X110
(214) 691-2109 (fax)
frank@honealaw.com

BY: /s/
F. Franklin Honea
State Bar No. 09934300

Ron Adkison
State Bar No. 00921090
ADKISON LAW FIRM
300 W. Main St.
Henderson, TX 75652-3109
Telephone: (903) 657-8545
Facsimile: (903) 657-6108
ron@adkisonlawfirm.com

ATTORNEYS FOR LONG

REPLY BRIEF OF APPELLANTS, LARRY T. LONG AND WOODBINE PRODUCTION CORP. – Page 23
 CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing document has been

delivered by electronic transmission, a manner in accordance with the Texas Rules

of Civil Procedure, addressed to the following:

Deborah Race
Ireland, Carroll & Kelley, P.C.
6101 S. Broadway, Suite 500
Tyler, Texas 75703
drace@icklaw.com

Charles H. Clark
Clark & Porter
P.O. Box 98
Tyler, Texas 75710
chc@charlesclarklaw.com

Clay Wilder
WILDER & WILDER, P.C.
200 North Main St.
P.O. Box 1108
Henderson, TX 75653-1108
903-657-0561
903-657-5088 (fax)
cwilder@suddenlinkmail.com

DATED this 28 day of January 2015.

/s/ F. Franklin Honea

REPLY BRIEF OF APPELLANTS, LARRY T. LONG AND WOODBINE PRODUCTION CORP. – Page 24
 CERTIFICATE OF COMPLIANCE

I certify that this Reply Brief of Appellants, Larry T. Long and Woodbine

Production Corporation includes 5921 words beginning with its Introduction

through its Prayer, relying on the word count of the computer program used to

prepare the document.

/s/ F. Franklin Honea

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