Hibernia Energy III, LLC v. Ferae Naturae, LLC

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

HIBERNIA ENERGY III, LLC, § No. 08-21-00092-CV

Appellant, § Appeal from the

v. § 112th Judicial District Court

FERAE NATURAE, LLC, § of Reagan County, Texas

Appellee. § (TC# CV02322)

OPINION

The genesis of this case is a 1997 judgment obtained by original judgment creditors against

two individuals (the original judgment debtors). The original judgment creditors filed an abstract

of the judgment in various Texas counties, including Reagan County, where the original judgment

debtors had an interest in a mineral lease, thereby creating a judgment lien on that lease. Through

a series of transactions, Appellant Hibernia Energy III, LLC (Hibernia) and its co-defendant at

trial, TRP Midland, LLC (TRP) had acquired the original judgment debtors’ interests in that lease.

In turn, Appellee Ferae Naturae, LLC (Ferae) was assigned the judgment lien that encumbered the

lease. Ferae then filed suit against Hibernia and TRP to foreclose on the lien. The trial court granted

Ferae’s motion for summary judgment, entered a final judgment foreclosing the lien, and issued

an order of sale, directing the sale of both Hibernia and TRP’s interests in the lease. Both Hibernia and TRP appealed, but TRP has since resolved its dispute with Ferae and is no longer a party to

the appeal.

In its appeal, Hibernia contends that the trial court erred in granting summary judgment. In

addition, Hibernia contends that the trial court’s order of sale incorrectly described the mineral

interests subject to the lien, and mistakenly included a working interest in the lease that was not

subject to the lien. Although we disagree with the bulk of Hibernia’s arguments, and affirm the

trial court’s final judgment foreclosing the judgment lien, we remand this matter to the trial court

to modify the order of sale: (1) to address how the order must be modified given TRP’s settlement

with Ferae; (2) to ensure that the relief set forth in the order corresponds with the relief that Ferae

requested in its pleadings; and (3) to ensure that the individual judgment debtors are given the

proper credits for the proceeds from the sale of the lease that corresponds with their respective

interests. 1

I. FACTUAL BACKGROUND

A. The Underlying Reformed Judgment

Following a jury trial in 1997, a group of plaintiffs, including Patricia Love Stephens

(Patricia) and other affiliated individuals (collectively, the Stephens Entities), obtained a money

judgment against two brothers, Frank W. Cass (Frank), and Michael L. Cass (Michael) for breach

of contract, conversion, and fraud. The trial court’s 1997 final judgment awarded substantial actual

and punitive damages against both Frank and Michael.

On appeal, we at first upheld the jury’s verdict and its award of damages, rejecting all the

Casses’ claims of error; the Texas Supreme Court denied a petition for review. Cass v. Stephens,

1 Hibernia and Ferae are both unhappy with the supersedeas bond that the trial court set and have filed competing motions before this Court on that issue. We dispose of those motions in a separate order that is issued alongside this opinion.

2 No. 08-97-00582-CV, 2001 WL 28092, at *35 (Tex.App.--El Paso Jan. 11, 2001, pet. denied),

cert. granted, judgment vacated, 538 U.S. 1054 (2003). As the writ history reflects, the United

States Supreme Court granted certiorari on the limited question of whether the punitive damages

awards were excessive, and the Court directed us to reconsider that question considering State

Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S. 408 (2003) (a case holding courts may

review punitive damage award for excessiveness under the Due Process Clause). On remand, and

after considering the factors set forth in Campbell, we reformed the punitive damages awards,

finding that $300,000 was a reasonable punitive damages award against Frank individually, and

that $300,000 was also a reasonable punitive damages award against Frank and Michael, jointly

and severally. See Cass v. Stephens, 156 S.W.3d 38, 77 (Tex.App.--El Paso 2004, pet. denied). We

affirmed the trial court’s judgment in all other respects. Id. at 79. After both the Texas Supreme

Court and the United States Supreme Court denied review of our decision, this Court issued its

mandate.

B. The 1999 Execution on the Judgment

In the interim, while the matter was pending on appeal, a Dallas County district court judge

issued a turnover order directing the sheriff to execute on all oil and gas and mineral interests held

by Frank in Dallas County to allow the Stephens Entities to begin collecting on their judgment The

sheriff executed on properties held by Frank in August 1999, and Frank was given a $25,000 credit

on the judgment.

C. The 2008 Creation of the Judgment Liens

In July 2008 (after we issued our mandate affirming the trial court’s final judgment as

reformed) the Stephens Entities filed an abstract of judgment in several counties in Texas where

the Casses owned property. See TEX.PROP.CODE ANN. § 52.001 (providing that the filing of an

abstract of judgment “constitutes a lien on and attaches to any real property of the defendant, other

3 than real property exempt from seizure or forced sale under Chapter 41”). The abstract stated that

together with court costs and prejudgment interest, as of July 1, 2008, Frank owed $13,178,325.88,

and Michael owed $1,911,741.24 on the judgment. In addition, it reflected that Frank was entitled

to a $25,000 credit based on the amount collected with the prior turnover order.

D. The Later Assignments of the Judgment and Judgment Liens

In September 2016, the Stephens Entities assigned all their rights and interests in the

underlying judgment and judgment liens to Patco Energy, Ltd. (Patco), of which Patricia Stephens

was the general partner. Patco thereafter made two assignments significant to this appeal. First, in

2016 Patco assigned its interests in certain oil and gas leases in Upton County to Crown Rock, L.P.

(Crown Rock) and Parsley DE Lonestar, LLC (Parsley). This transaction reflected that Patco had

judgment liens in Upton County—based on the underlying judgment against the Casses—and

Patco agreed to make a partial assignment to Crown Rock of any interest it had in the judgment

liens. In exchange, Crown Rock and Parsley agreed to pay Patco $20,200,000. Thereafter, in June

2017, Crown Rock and Parsley assigned a portion of their interest in the judgment liens to Pioneer

Natural Resources USA, Inc. (Pioneer) for an undisclosed sum of money.

Second, in August 2019, Patco made a partial assignment of its interest in the underlying

judgment to Appellee Ferae Natura, LLC (Ferae). That assignment was limited to any interests in

oil, gas and other minerals owned by the Casses, or their heirs or assignees, in Reagan County.

This assignment was duly filed in the Reagan County public records.

To keep the 2008 original abstract of judgment alive as required by the Property Code,

Patco filed a First Subsequent Abstract of Judgment in July 2018. 2 This abstract reflected the same

2 Section 52.006 of the Texas Property Code provides that “a judgment lien continues for 10 years following the date of recording and indexing the abstract, except that if the judgment becomes dormant during that period the lien ceases to exist.” TEX.PROP.CODE ANN. § 52.006 (a).

4 $25,000 credit to Frank, and stated that, as of June 1, 2018, with post judgment interest, Frank

owed $34,896,266.54 and Michael owed $4,946,733.43 on the judgment.

E. The Casses’ Assignment of Their Interests in the Branch Lease

When the original abstract of judgment was first filed in Reagan County in 2008, the Casses

owned a working interest in a mineral lease in that county, known as the Branch Lease—the subject

of this appeal. In September 2018, by separate assignments, Michael and Frank transferred their

interests in the Branch Lease, “below the base of the Dean Formation,” to TRP Midland, LLC

(TRP). Then in April 2019, TRP made a partial assignment to Hibernia of its interest in the Branch

Lease, limited to a specified 80 acres of the lease.

II. PROCEDURAL BACKGROUND

A. Ferae Files its Foreclosure Lawsuit

In January 2020, Ferae filed its original petition seeking to foreclose its judgment lien on

the Branch Lease, naming among others, Hibernia and TRP (collectively, the Defendants). The

suit requested an order of sale corresponding to the interest in the lease that previously belonged

to the Casses. In its petition, Ferae alleged that the Defendants had purchased their respective

interests in the lease with notice of the existing judgment lien, based on the abstract of judgment

on file in Reagan County.

B. Attempt to Add Claimed Necessary Parties

After answering Ferae’s lawsuit, the Defendants sought to bring the other “judgment

creditors” into the case, including Patco, Crown Rock, Parsley, and Pioneer, all of whom the

Defendants asserted were “necessary” parties to the lawsuit. Defendants theorized that any credit

the Casses might receive from the sale of the Branch Lease would effectively cut into the other

judgment creditors’ ability to collect on their interest in the judgment. To that end, the Defendants

5 filed a third-party petition naming the Stephens Entities and Patco, seeking among other things, an

accounting of any payments they received on the underlying judgment, and a declaration that the

underlying judgment was satisfied.

C. Ferae Moves for Summary Judgment

In May 2020, Ferae moved for summary judgment, seeking a judicial foreclosure on its

lien and an order of sale of the interest in the Branch Lease that the Defendants had received from

the Casses. In its motion, Ferae contended that the undisputed evidence established that it acquired

the right to foreclose on the lien from Patco and that: (1) the Casses owned an 82% working interest

in the Branch Lease when the original and later abstracts of judgment were filed in Reagan County;

(2) the filing of the abstracts of judgment created a judicial lien on all property then-owned by the

Casses in Reagan County; and (3) the Casses transferred their interests in the Branch Lease to the

Defendants subject to that lien. Ferae attached several documents in support of its right to foreclose

on the lien, including: (1) the reformed final judgment against the Casses and this Court’s mandate

affirming the judgment as reformed; (2) the abstracts of judgment filed in Reagan County; (3) the

assignment of the reformed judgment from the Stephens Entities to Patco; (4) Patco’s partial

assignment of the reformed judgment to Ferae; and (5) the assignments made by the Casses to TRP

of their interests in the Branch Lease, and the partial assignment that TRP made to Hibernia of its

interests in the lease.

Relevant to this appeal, the Defendants opposed the motion arguing, among other things,

that Ferae’s predecessors-in-interest had received at least two payments from third parties—in

addition to the $25,000 credit from the 1999 writ of execution—which the Defendants argued

should have been applied as credits to the underlying judgment. They argued that the question of

whether these credits should have been applied to the judgment raised a fact question about

whether the judgment has been either fully or partially satisfied, which in turn, potentially

6 extinguished the judgment lien on the Branch Lease. The two payments consisted of the

$20,200,000 payment that Patco received from Crown Rock and Parsley in 2016, and a $300,000

payment that the Stephens Entities received from PCORE Exploration and Production, LLC

(PCORE), in exchange for a “partial release of judgment lien” in PCORE’S favor for its interest

in an oil and gas lease in which Frank Cass also had an interest.

In reply, Ferae responded that the Defendants had presented no evidence to suggest that

these two payments were made on the Casses’ behalf or that the parties intended for them to be

applied as credits to the underlying judgment. And Ferae further argued that even if the payments

could be credited to the judgment, those amounts would not have been enough to extinguish the

judgment. Accordingly, Ferae argued that the Defendants had failed to meet their burden of raising

a question of fact on Ferae’s entitlement to foreclose on the lien.

Before the summary judgment motion was heard, the Defendants counterclaimed against

Ferae. The counterclaim sought an “accounting” of all monies that they or their predecessors-in-

interest had received relating to any property that the Casses owned or previously owned, including

any monies received from their assignments of the judgment or judgment liens to any third parties.

The Defendants also sought a declaratory judgment that the underlying judgment against the

Casses had been fully satisfied, and that the assignment to Ferae was therefore void and of no

effect.

Ferae then filed a First Supplemental Motion for Summary Judgment, seeking dismissal of

the Defendants’ counterclaim as lacking merit.

D. Patco Submits Patricia Stephens’ Declaration

As part of a discovery dispute between Patco and TRP, Patco attached a declaration from

its president, Patricia Stephens, revealing that her now-deceased landman had given her 16 boxes

of documents that he had maintained. The documents related to various properties in which she

7 and Patco held an interest. While she had not reviewed the documents, she stated her belief that

the boxes might contain documents relating to “properties formerly belonging to Frank Cass that

are now owned by myself and/or Patco, and that are potentially responsive” to TRP’s discovery

requests. 3 The trial court set the discovery dispute (a motion to compel against Patco) for the same

time as the hearing on Ferae’s supplemental motion for summary judgment.

E. The Trial Court Enters its Ruling and Judgment

Following its hearing, the trial court issued an order in which it found that Ferae had a valid

judgment lien on the Branch Lease, and that Ferae had a right to foreclose on the lien. It also

dismissed the counterclaims that Hibernia and TRP had filed against Ferae. And after finding that

its order disposed of all pending claims between Ferae, Hibernia, and TRP, it granted Ferae’s

motion to sever its lawsuit from the claims against the other defendants, making the matter ripe

for the entry of a final judgment.

Several months after the hearing, the trial court entered its final judgment and order of sale,

in which it recognized that Ferae’s judgment lien was based on the 1997 reformed judgment

against the Casses, and calculated that with prejudgment interest, as of the date of the summary

judgment hearing, Frank Cass owed $44,403,075.48, and Michael Cass owed $6,292,459.15, for

a total of $50,695,534.63. The trial court considered the $25,000 credit that Frank was entitled

based on the 1999 execution on his property in calculating the amounts owed. But the court did

not address whether the Casses were entitled to a credit for the $20,200,000 payment that Patco

had received from Crown Rock and Parsley, or for the $300,000 payment that the Stephens Entities

had received from PCORE.

3 TRP had served discovery on Patco requesting, among other things, that it identify and produce documents relating to the value of the judgment lien on the Branch Lease, the amounts Patco had received for any assignments of the lien, all documents it relied on in calculating its interest in the lien, documents pertaining to any other assignments it made of its interest in the underlying judgment, information relative to the 1999 execution on Frank Cass’s property, and any correspondence Patco had with various entities over the lien, the Branch Lease, and the current lawsuit in general.

8 The court then found that Ferae could foreclose on the property in accordance with the

interests set forth in its order of sale. In turn, the order of sale described those interests as follows:

The “Hibernia Interest”: An 82% interest in the Branch Lease, subject to its proportionate share of lease royalties, overriding royalties and other burdens totaling 25% (thereby delivering a 61.5% net revenue interest to said 82% interest). For the East 80 acres of the West half of the San Antonio Ditch Company Survey No. 1 (A-410) for the depths below the base of the Dean Formation.

The “TRP Midland Interest”: An 82% interest in the Branch Lease, subject to its proportionate share of lease royalties, overriding royalties, and other burdens totaling 25% (thereby delivering a 61.5% net revenue interest to said 82% interest) for the entirety of the Branch Lease for depths below the base of the Dean Formation. LESS AND EXCEPT the East 80 acres of the West half of the San Antonio Ditch Company Survey No. 1 (A-410)[.] 4

Hibernia filed a motion for new trial in which it argued, among other things, that the order

of sale did not accurately describe its interests in the Branch Lease and provided Ferae with more

relief than it was entitled to. The trial court denied the motion, together with all other post judgment

motions on file.

Both Hibernia and TRP appealed from the trial court’s final judgment and order of sale,

but Ferae and TRP settled their dispute while the matter was pending on appeal, and TRP is no

longer a party to the appeal.

III. ISSUES ON APPEAL

The overarching theme of Hibernia’s first two issues on appeal focus on whether the

judgment lien on the Branch Lease was still valid, or whether it had been extinguished due to

payments that the Stephens Entities and Patco had previously received. In its first issue, Hibernia

contends that to resolve this question, it was necessary to join into the suit all of the past and

present judgment creditors, along with the original judgment debtors, to account for any payments

4 A third brother, William Cass, who was not a debtor in the underlying judgment, held the overriding royalty interest, which the parties agree was not subject to the lien.

9 that may have been made since the original judgment was entered in 1997. Thus, Hibernia claims

the trial court erred in failing to join them in the lawsuit. In its second issue, Hibernia contends

that: (1) some of Ferae’s evidence on the validity of its lien was inadmissible and did not support

a finding that the lien was valid; (2) the trial court lacked the authority to calculate the amount of

post judgment interest owed on the judgment without expert testimony; (3) the record shows that

the judgment was either fully or partially satisfied by the $20,500,000 in payments that Ferae’s

predecessors-in-interest previously received; and (4) the trial court should have deferred ruling on

the summary judgment motion given Patricia Stephens’ declaration that she had additional

evidence on the issue of whether the underlying judgment was satisfied. And in its third issue,

Hibernia contends that the trial court’s order of sale did not correctly reflect the true nature of its

interest in the Branch Lease. As explained below, we find no merit in any of Hibernia’s first two

issues, but do find some errors in the order of sale that we direct the trial court to address on remand

in the interest of justice.

IV. THE TRIAL COURT DID NOT ERR IN FAILING TO JOIN OTHER ENTITIES TO THE LAWSUIT

In Issue One, Hibernia contends that the trial court erred by not joining as necessary parties

either the original judgment debtors (the Casses) or the other judgment creditors, both past and

present, in the lawsuit. We consider each category of potential parties separately and conclude that

neither the original judgment debtors nor the other judgment creditors were necessary parties to

Ferae’s foreclosure suit.

A. Standard of Review and Applicable Law

We review a trial court’s rulings on issues on joinder of parties for an abuse of discretion.

See Crawford v. XTO Energy, Inc., 509 S.W.3d 906, 910–11 (Tex. 2017). “A trial court abuses its

discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules

10 or principles.” Id., at 911, quoting Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002)

(per curiam).

In general, issues of joinder are governed by Rule 39 of the Texas Rules of Civil Procedure,

which provides that:

“A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.”

TEX.R.CIV.P. 39(a). The rule further provides that if such a party has not yet been joined, “the

court shall order that he be made a party.” Id. Although the rule contemplates that certain persons

“shall” be joined, there is no “precise formula for determining whether a particular person falls

within its provisions.” Cooper v. Texas Gulf Indus., Inc., 513 S.W.2d 200, 204 (Tex. 1974). The

Texas Supreme Court has further recognized that “it would be rare indeed if there were a person

whose presence was so indispensable in the sense that his absence deprives the court of jurisdiction

to adjudicate between the parties already joined.” Id. In other words, a failure to join an

indispensable party will rarely render a judgment void. Browning v. Placke, 698 S.W.2d 362, 363

(Tex. 1985) (per curiam).

B. Failure to Join the Casses as Judgment Debtors

On appeal, Hibernia contends that the trial court erred by failing to join the original

judgment debtors (the Casses) in the current lawsuit. But Hibernia did not raise this issue in the

trial court, and instead, only sought to join the judgment creditors in the suit. In general, when a

party fails to raise a joinder issue in the trial court, the issue is waived for appellate review. See

Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982) (per curiam) (defendants could not be heard

to complain for the first time on appeal that an entity was an indispensable party); see also Brooks

11 v. Northglen Ass’n, 141 S.W.3d 158, 163 (Tex. 2004) (respondent had the opportunity to bring up

joinder, but waived it by not raising it in the trial court), citing TEX.R.APP.P. 33.1 (as a prerequisite

to presenting a complaint for appellate review, the record must show that “the complaint was made

to the trial court by a timely request, objection, or motion . . .”). There are limited instances,

however, in which the nonjoinder of a person or entity constitutes “fundamental” error that may

be raised for the first time on appeal. See Dueitt v. Dueitt, 802 S.W.2d 859, 861 (Tex.App.--

Houston [1st Dist.] 1991, no writ) (“The failure to join a jurisdictionally indispensable party

constitutes fundamental error, which an appellate court is bound to notice if the error is apparent

from the face of the record.”); see also Tristan v. Castillo, No. 04-05-00658-CV, 2007 WL 752203,

at *3 (Tex.App.--San Antonio Mar. 14, 2007, no pet.) (mem. op.) (finding that nonjoinder of

individual did not constitute fundamental error where individual’s absence did not deprive the trial

court of jurisdiction).

Hibernia does not directly address the question of whether the failure to join the Casses in

the lawsuit was fundamental error, but we conclude that it was not. The Casses’ presence in the

lawsuit did not deprive the trial court of jurisdiction to grant Ferae’s request to foreclose on its

lien. In general, an action to foreclose on a lien is an “in rem” proceeding, and only those

individuals or entities having a current interest in the property subject to foreclosure are necessary

parties to a foreclosure suit. See generally Pereira v. Gulf Elec. Co., 343 S.W.2d 334, 336

(Tex.App.--Waco 1960, writ ref’d n.r.e.) (while a former owner of property may be a proper party

in a suit to foreclose a lien, the former owner is not a necessary party in an “in rem” proceeding),

citing Hartfield v. Greber, 207 S.W. 85, 86 (Tex. [Comm’n Op.] 1918) (“It is a well-settled rule

of the common law that, in a suit to foreclose a mortgage, it is not necessary to make the debtor a

party to the suit, where he has parted with his interest in the property, unless a personal judgment

is sought against him.”); see also; Demo v. Goforth, 556 S.W.2d 128, 130 (Tex.App.--San Antonio

12 1977, no writ) (where original judgment debtors had assigned their interest in subject property to

named defendants, they were not necessary parties to lawsuit that sought to foreclose on a

judgment lien that encumbered the property). Here, the Casses had parted with their interests in

the Branch Lease when Ferae brought its foreclosure lawsuit, and therefore, the Casses had no

current interest in the property. And Hibernia has cited no authority suggesting that a person or

entity with a past interest in property that is the subject of foreclosure must be joined in a

foreclosure suit. To the contrary, in the only two cases that Hibernia cites, the only issue before

those courts was whether the trial court properly joined all parties who had a current interest in a

property dispute. 5

We thus conclude that it was not fundamental error for the trial court to rule on Ferae’s

foreclosure suit in the Casses’ absence.

C. The Order of Sale was Overbroad

Hibernia, however, does point out that the trial court’s order of sale impacted the Casses’

rights because it states that if the proceeds from the sale of Hibernia and TRP’s interests in the

Branch Lease cannot satisfy the underlying judgment, the sheriff or constable who was conducting

the sale was “commanded” to take said monies “or any balance remaining unpaid out of any other

property of the Judgment Debtors Frank Cass and Michael Cass as in ordinary execution . . .” We

agree with Hibernia that this language was improperly included in the order of sale, as Ferae never

sought such relief, and instead, its suit was limited to only foreclosing on its lien on the Branch

Lease.

5 See Pierce v. Blalack, 535 S.W.3d 35, 42 (Tex.App.--Texarkana 2017, no pet.) (trial court did not abuse its discretion in ordering the joinder of all individuals with a potential interest in property that was the subject of a trespass-to-try title lawsuit); Longoria v. Exxon Mobil Corp., 255 S.W.3d 174, 181 (Tex.App.--San Antonio 2008, pet. denied) (in title dispute over real property on which a mineral estate was located, trial court did not abuse its discretion in ordering the joinder of the owners of the mineral estate and any royalty interests, as well as all lessors).

13 That portion of the order of sale is also problematic because the Casses are not parties. See,

e.g., Brooks, 141 S.W.3d at 163-64 (recognizing that a trial court has no jurisdiction to declare the

rights of parties who are not before it). Yet, we do not view this as an error in the trial court’s

failure to join the Casses as necessary parties to the lawsuit; instead, the order simply gave Ferae

more relief than it requested in its pleadings. See TEX.R.CIV.P. 301 (“The judgment of the court

shall conform to the pleadings and the nature of the cases proved . . .”); Rouhana v. Ramirez, 556

S.W.3d 472, 477 (Tex.App.--El Paso 2018, no pet.) (“a judgment must conform to the pleadings

and proof, and a party may not be granted relief in the absence of pleadings to support it”). The

remedy for this variance is not reversal of the trial court’s judgment, but simply a remand to reform

the order of sale. Thus, in the interest of justice, we find it appropriate to remand this matter to the

trial court with directions to reform the order of sale to omit this language, and to limit its order

solely to the sale of Hibernia’s interest in the Branch Lease. See generally TEX.R.APP.P. 43.6 (a

“court of appeals may make any other appropriate order that the law and the nature of the case

require”).

D. The Failure to Join the Other Judgment Creditors

Hibernia also claims error in the trial court’s failure to join the other “judgment creditors”

to the lawsuit, including Patco, Crown Rock, Parsley, and Pioneer. Each of these entities had a

continuing interest in collecting on the underlying judgment and the various judgment liens that

they had been assigned. Hibernia contends that because any proceeds from the sale of Ferae’s

judgment lien will be credited to the underlying judgment, this would reduce the amount available

to the other judgment creditors in their future collection efforts.

Hibernia primarily relies on the Texas Supreme Court’s opinion in McDonough v. Cross,

40 Tex. 251, 287 (Tex. 1874) for the proposition that “all judgment creditors should be joined in

a foreclosure suit.” McDonough, however, is inapt. It involved a situation in which two creditors

14 of an estate had an equal interest in executing on the same property. One creditor had obtained a

lien on the property and sought to foreclose on the lien to the exclusion of the other creditor. Id. at

286-87. The court in McDonough held that both creditors were necessary parties to the foreclosure

suit given their identical interest in the same property. Id. Here, in contrast, the other judgment

creditors identified by Hibernia had either previously transferred all their interests on the judgment

lien on which Ferae sought foreclosure, or never had any such interest to begin with. And the fact

that some of the other judgment creditors had a past interest in the lien does not render them

necessary parties to the lawsuit. To the contrary, the Texas Property Code expressly provides that

a holder of a prior encumbrance on land or a leasehold is not a necessary party to a suit to foreclose

a lien. TEX.PROP.CODE ANN. § 56.041(b). Similarly, the Texas Supreme Court has expressly held

that when a party has assigned all its rights to a lien on a property, it is not a necessary party to a

foreclosure lawsuit. See Douglass v. Blount, 67 S.W. 484, 489 (Tex. 1902). Contrary to Hibernia’s

claim, the presence of the other judgment creditors was unnecessary to Ferae’s foreclosure suit.

We also reject Hibernia’s contention that the failure to join the other judgment creditors

would allow Ferae to usurp the other judgment creditor’s interests in the underlying judgment. In

support of this argument, Hibernia relies on Turner v. Phelps & Co., 46 Tex. 251, 261 (1876) in

which the court recognized that when there are multiple creditors seeking to collect on a single

“security or trust fund,” one creditor may not “merely by [filing] a suit in his own behalf, seize

upon and appropriate to his own benefit the entire security or trust fund.” In that case, however,

the court dealt with multiple creditors who had an interest in the same property. The court

recognized that it would be unfair to allow one creditor with a secured interest in the property to

“appropriate to his own benefit” the proceeds from the sale of that property without considering

the other creditor’s rights. Id. But here, while the other judgment creditors had a mutual interest in

collecting on the underlying judgment, none of them had any interest in Ferae’s judgment lien.

15 Hibernia also presented no evidence to suggest that the sale of Ferae’s interest in the Branch

Lease would have impacted the rights of the other judgment creditors to collect on their share of

the underlying judgment. The Casses owed over $50 million dollars on the underlying judgment,

and Hibernia failed to demonstrate how a credit from the sale of its interest in the Branch Lease

would have impacted the other judgment creditors’ ability to collect on their proportionate share

of the judgment. We thus conclude that the trial court did not err in failing to join the other

judgment creditors in Ferae’s foreclosure suit.

Hibernia’s Issue One is overruled, subject to our directions to the trial court to modify its

Order of Sale to conform to Ferae’s pleadings on remand.

V. THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT In Issue Two, Hibernia broadly contends that: (1) Ferae failed to meet its initial burden of

establishing that it had a valid, subsisting judgment lien on the Branch Lease; and (2) the record

raises a fact question on whether the underlying judgment against the Casses had been either fully

or partially extinguished. Each of these contentions contains multiple subparts addressing the

admissibility of Ferae’s summary judgment evidence.

A. Standard of Review

“A party seeking to recover upon a claim . . . may, at any time after the adverse party has

appeared or answered, move with or without supporting affidavits for a summary judgment in his

favor upon all or any part thereof.” TEX.R.CIV.P. 166a(a). “In a traditional motion for summary

judgment, the moving party must show that no genuine dispute exists as to any material fact such

that the party is entitled to judgment as a matter of law.” Eagle Oil & Gas Co. v. TRO-X, L.P., 619

S.W.3d 699, 705 (Tex. 2021), citing TEX.R.CIV.P. 166a(c). We review a trial court’s grant of

summary judgment de novo. Id. at 705. In doing so, we review the evidence in the light most

favorable to the non-movant, indulge every reasonable inference in favor of the non-movant, and

16 resolve any doubts against the motion. Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520

S.W.3d 39, 45 (Tex. 2017), citing City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).

When a party with the burden of proof moves for traditional summary judgment, that party

“bears the burden to conclusively establish that it is entitled to judgment as a matter of law,

notwithstanding the nonmovant’s response or lack thereof.” B.C. v. Steak N Shake Operations,

Inc., 598 S.W.3d 256, 258-59 (Tex. 2020) (per curiam), citing TEX.R.CIV.P. 166a(c). Thus, when

a plaintiff moves for summary judgment, it must establish its right to summary judgment by

conclusively proving all elements of its cause of action as a matter of law. Havlen v. McDougall,

22 S.W.3d 343, 345 (Tex. 2000). A matter is conclusively established if reasonable people could

not differ as to the conclusion to be drawn from the evidence. See City of Keller, 168 S.W.3d at

815-16. If the movant establishes its right to judgment as a matter of law, the burden shifts to the

nonmovant to present evidence raising a genuine issue of material fact precluding summary

judgment, applying the same standard in determining whether reasonable and fair-minded jurors

could differ in their conclusions considering all the evidence presented. Goodyear Tire & Rubber

Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam); Nevarez v. USAA Fed. Sav. Bank,

630 S.W.3d 416, 421–22 (Tex.App.--El Paso 2021, pet. denied).

B. Applicable Law

A plaintiff seeking to foreclose on a judgment lien that encumbers the defendant’s property

has the initial burden of establishing that its lien is valid and subsisting. See Nichols v. Cansler,

140 S.W.2d 254, 255-56 (Tex.App.--Fort Worth 1940, writ dism’d judgm’t cor.) (in an action in

rem to foreclose on a statutory judgment lien, the plaintiffs carry the burden to show that the lien

is a valid, subsisting lien), citing Boyd v. Ghent, 64 S.W. 929, 930 (1901); see generally 48

TEX.JUR.3D JUDGMENTS § 551 (burden of proof is on the creditor to establish that a lien is valid

and subsisting). Aside from showing that it is the owner of the judgment lien, the plaintiff must

17 establish the validity of its lien by proving that an abstract of judgment was properly recorded and

indexed in the county records where the debtor’s property was located. See Murray v. Cadle Co.,

257 S.W.3d 291, 296–97 (Tex.App.--Dallas 2008, pet. denied); Siddiq v. Hawkins, No. 05-09-

00581-CV, 2011 WL 3211254, at *6 (Tex.App.--Dallas July 29, 2011, pet. denied) (mem. op.)

(“The party seeking to foreclose a judgment lien has the burden of proving the abstract of judgment

was properly recorded and indexed.”).

When properly recorded and indexed, an abstract of judgment creates a judgment lien on

the debtor’s property in the county where the abstract is recorded, which is superior to the rights

of any subsequent purchasers and lienholders. See Gordon v. W. Houston Trees, Ltd., 352 S.W.3d

32, 39 (Tex.App.--Houston [1st Dist.] 2011, no pet.); see also Hahn v. Love, 394 S.W.3d 14, 20

(Tex.App.--Houston [1st Dist.] 2012, pet. denied) (a judgment lien automatically attaches to a

debtor’s property through a properly recorded and indexed abstract of judgment). The purpose of

an abstract of judgment is to create a lien against the debtor’s property and to provide notice to

subsequent purchasers and encumbrancers of the existence of the judgment and the lien. Wilson v.

Dvorak, 228 S.W.3d 228, 233 (Tex.App.--San Antonio 2007, pet. denied).

But if the judgment debtors—or someone acting on their behalf—has paid off the

underlying judgment, the now extinguished judgment also extinguishes any related judgment liens

on the debtor’s property. See Equitable Tr. Co. v. Roland, 644 S.W.2d 46, 52 (Tex.App.--San

Antonio 1982, no writ) (where “lien was granted solely to satisfy the judgment appellant sought

in its original action on an equipment lease, the lien was extinguished once the judgment was

satisfied”). The Texas Property Code provides that the “[s]atisfaction of a judgment in whole or in

part may be shown by recordation of: (1) a return on an execution issued on the judgment, or a

copy of the return, certified by the officer making the return,” with certain specified information

contained in it, or by (2) a receipt, acknowledgment, or release signed by the party entitled to

18 receive payment of the judgment or by that person’s agent or attorney of record and that is

acknowledged or proven in the manner required for deeds. TEX.PROP.CODE ANN. § 52.005. Section

52.005 is not, however, the only way satisfaction of a judgment can be shown. See Cadle Co. v.

Int’l Bank of Com., No. 04-06-00456-CV, 2007 WL 752260, at *3 (Tex.App.--San Antonio Mar.

14, 2007, pet. denied) (mem. op.). Thus, if there is sufficient evidence to establish that a judgment

creditor accepted money in complete satisfaction and release of his judgment, that judgment will

have no further force or authority. Id., citing Rapp v. Mandell & Wright, P.C., 123 S.W.3d 431,

434-35 (Tex.App.--Houston [14th Dist.] 2003, pet. denied); Reames v. Logue, 712 S.W.2d 802,

805 (Tex.App.--Dallas 1986, writ ref’d n.r.e.).

C. Ferae Met its Burden of Establishing the Validity of its Lien

We first consider Hibernia’s argument that Ferae failed to establish that it had a valid

judgment lien on the Branch Lease. Hibernia contends that the evidence Ferae submitted in support

of this claim was inadmissible and should not have been considered by the trial court in granting

summary judgment in Ferae’s favor. Ferae’s evidence consisted of: (1) the assignment of the

underlying judgment and all attendant judgment liens from the Stephens Entities to Patco; (2) the

partial assignment from Patco to Ferae of its interests in the underlying judgment and judgment

liens pertaining to all mineral properties owned or previously owned by the Casses, including those

in Reagan County; (3) copies of the 2008 and 2018 abstracts of judgment that were filed in Reagan

County; and (4) the assignment from the Casses to Hibernia of their interest in the Branch Lease.

Ferae also provided an internet link to the Reagan County Index of property records. On appeal,

Hibernia challenges the admissibility of only two of these items: (1) the document reflecting the

assignment of the underlying judgment and judgment liens from the Stephens Entities to Patco,

and (2) the internet link to the Reagan County Index. We consider the challenges together because

they both stumble for a common reason.

19 Ferae established that the Stephens Entities transferred their interests in the underlying

judgment and judgment liens to Patco with an assignment document marked as Exhibit G. Hibernia

contends the document contains inadmissible hearsay. Hibernia also challenged Ferae’s Exhibit

K, an internet link to the Reagan County Index. Hibernia objected that this document constituted

inadmissible hearsay and was not properly authenticated.

Ferae responds that Hibernia waived the admissibility issues on appeal by failing to timely

object to the admission of the exhibit, and by failing to obtain a ruling on its objection in the trial

court. We disagree with the timeliness argument, but agree that Hibernia never obtained a ruling

on the objections. Hibernia objected to Ferae’s summary judgment exhibits on the day of the

summary judgment hearing. Rule 166a(c) of the Texas Rules of Civil Procedure requires the non-

moving party in a summary judgment proceeding to file and serve “opposing affidavits or other

written response” not later than seven days before the day of the hearing. Ferae reads this rule to

include objections to summary judgment evidence. Yet the filing of an objection to a movant’s

summary judgment evidence is “not the same as a summary judgment response.” See Aerobic

Maint. & Serv., Inc. v. First United Bank & Tr. Co., No. 02-08-232-CV, 2009 WL 1425179, at *5

(Tex.App.--Fort Worth May 21, 2009, no pet.) (mem. op.). So “objections to the form of summary

judgment proof,” which include objections based on hearsay, may be raised at “any time before

the judgment is rendered.” Id.; see also Life Ins. Co. of Va. v. Gar-Dal, Inc., 570 S.W.2d 378, 380-

81 (Tex. 1978) (recognizing that a nonmovant may object to defects in the form of summary

judgment evidence at any time before judgment is rendered). Thus, Hibernia’s objection to the

evidence was timely filed.

That said, because Hibernia’s hearsay objections went only to the form of Ferae’s summary

judgment evidence, rather than their substance, Hibernia needed to obtain a ruling on its objection

to preserve the issue for appellate review. See Seim v. Allstate Texas Lloyds, 551 S.W.3d 161, 166

20 (Tex. 2018) (recognizing that if a party fails to obtain a ruling on an objection to the form of its

opponent’s summary judgment evidence, the issue is waived for appellate review, and the evidence

remains part of the summary judgment proof); see also Dailey v. Albertson’s, Inc., 83 S.W.3d 222,

225 (Tex.App.--El Paso 2002, no pet.) (issues relating to form defects in summary judgment

evidence must be preserved by both an objection and ruling at the trial court level). Cnty. of El

Paso v. Baker, 579 S.W.3d 686, 694 (Tex.App.--El Paso 2019, no pet.) (recognizing that a hearsay

objection is one of form). The trial court’s’ ruling may be either in writing or in the form of the

“trial court’s on-the-record, unequivocal oral ruling” on the objection. See FieldTurf USA, Inc. v.

Pleasant Grove Indep. Sch. Dist., 642 S.W.3d 829, 838 (Tex. 2022). Although Hibernia’s attorney

discussed the objection to Ferae’s summary judgment evidence at the summary judgment hearing

and stated that he intended to file a proposed order ruling on it, the trial court did not make an

express oral ruling, nor did it later issue a written ruling. Hibernia therefore failed to preserve the

hearsay complaint for Exhibits G and K for our review. See Baker, 579 S.W.3d at 694 (appellant’s

hearsay arguments were waived where trial court never made a ruling on its objection).

Like hearsay, a party must also obtain a ruling on authentication objections to preserve

appellate review. See Aerobic Maint. & Serv., Inc., 2009 WL 1425179, at *5 n.7 (recognizing that

both hearsay and “authentication” objections to a movant’s summary judgment proof are

objections about the form rather than substance of the evidence); Adi v. Prudential Prop. & Cas.

Ins. Co., No. 14-01-01001-CV, 2003 WL 22908129, at *3 (Tex.App.--Houston [14th Dist.]

Dec. 11, 2003, pet. denied) (mem. op.) (recognizing that both hearsay objections and objections to

the authentication of evidence are both defects of form, and that both objections are waived by a

party’s failure to secure rulings on them), citing Rogers v. Cont’l Airlines, Inc., 41 S.W.3d 196,

200 (Tex.App.--Houston [14th Dist.] 2001, no pet.). We likewise conclude that Hibernia’s

authentication objection to K is waived.

21 As Hibernia raises no other challenges to the admissibility of Ferae’s summary judgment

evidence to support its claim that it had a valid judgment lien on the Branch Lease, we conclude

that Ferae met its initial burden of establishing the validity of the lien.

D. Hibernia Failed to Present Evidence Establishing that the Judgment Lien was Extinguished

This brings us to the crux of Hibernia’s argument: whether it raised a genuine issue of

material of fact for whether the underlying judgment against the Casses was partially or fully

satisfied by payments that the Stephens Entities and Patco had previously received from third

parties. Hibernia’s argument on this issue can be broken into four categories that we discuss

separately below: (1) whether the trial court erred in calculating the amount the Casses still owed

on the underlying judgment without the aid of an expert witness testimony to compute the amount

of post judgment interest owed; (2) whether the trial court erred in failing to apply a credit of

$20,200,000 on the judgment based on the payment Patco received from Crown Rock and Parsley

in Upton County; (3) whether the trial court erred in failing to apply a credit of $300,000 on the

judgment based on the payment the Stephens Entities received from PCORE to extinguish a

judgment lien in Reagan County; and (4) whether the trial court erred in failing to consider Patricia

Stephens’ declaration about the documents she had in her possession in determining whether the

underlying judgment was satisfied.

22 1. Ferae’s waiver argument

To begin with, Ferae argues that Hibernia did not preserve any of these issues for our

review, as Hibernia’s pleadings did not conform to Rule 95 of the Texas Rules of Civil Procedure.

That rule provides that a defendant who raises the affirmative defense of “payment” must provide

an itemized “account” of the payments he claims were made. TEX.R.CIV.P. 95 (providing that

when a “[w]hen a defendant shall desire to prove payment, he shall file with his plea an account

stating distinctly the nature of such payment, and the several items thereof; failing to do so, he

shall not be allowed to prove the same, unless it be so plainly and particularly described in the plea

as to give the plaintiff full notice of the character thereof.”). Hibernia raised as affirmative defenses

the “doctrine of payment” and “the doctrine of release.” It also alleged in its answer that it was

entitled to an “offset” in an unspecified amount, but admittedly did not file an “account” stating

the nature of the payments or the offset to which it believed it was entitled. We do not believe,

however, that Rule 95’s requirement of providing an itemized “account” of the payments made

applies to any of Hibernia’s defenses. To the contrary, this requirement appears to only apply to

cases in which a plaintiff-creditor is attempting to collect on a debt owed by the defendant, and the

defendant is claiming that the debt was either paid in full or in part. See, e.g., Rea v. Sunbelt Sav.,

FSB, Dallas, Texas, 822 S.W.2d 370, 373 (Tex.App.--Dallas 1991, no writ) (recognizing that Rule

95 requires an affirmative plea of payment in response to plaintiff’s attempt to collect on amounts

owing on defendant’s note to plaintiff); Equitable Tr. Co., 644 S.W.2d at 53 (recognizing that Rule

95 applies to situations in which the plaintiff is suing a defendant in the capacity of a judgment

creditor). Ferae was not attempting to collect on a debt owed by Hibernia, and Hibernia was not

claiming that it made any payments to Ferae on any such debt. Instead, Hibernia’s affirmative

defenses all relate to the issue of whether third parties had made payments to Ferae’s predecessors-

in-interest that should have been credited against the underlying judgment, and whether this would

23 have extinguished Ferae’s judgment lien. And Ferae has cited no cases for the proposition that

Rule 95 applies in this circumstance.

Moreover, regardless of any pleading deficiencies, the record reflects that the parties tried

this issue by consent in the summary judgment proceedings, as the parties fully briefed the question

of whether there were any third-party payments that should have been credited to the underlying

judgment in their summary judgment pleadings. See Cooper v. Circle Ten Council Boy Scouts of

Am., 254 S.W.3d 689, 694 (Tex.App.--Dallas 2008, no pet.) (recognizing that “[un]pleaded issues

may be tried by consent in summary judgment proceedings if no one objects”), citing Roark v.

Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991); Roberts v. Wells Fargo Bank, N.A.,

406 S.W.3d 702, 707 (Tex.App.--El Paso 2013, no pet.) (where record failed to demonstrate that

appellee objected when appellant raised an unpleaded claim in summary judgment proceedings,

the claim was tried by consent); Equitable Tr. Co., 644 S.W.2d at 52–53 (where parties argued the

issue of payment at trial, and payment was conceded by defendant’s counsel, the issue was tried

by consent). Accordingly, the issue of whether the judgment was satisfied by the third-party

payments was before the trial court in the summary judgment proceedings, and we will therefore

consider the issue on appeal. See generally Li v. Pemberton Park Cmty. Ass’n, 631 S.W.3d 701,

704 (Tex. 2021) (per curiam) (appellate courts should hesitate to turn away claims based on waiver

or failure to preserve the issue, particularly when a party sufficiently “registered” an issue for the

trial court to consider).

2. Hibernia failed to establish any error in the court’s interest calculation

We first consider Hibernia’s argument that the trial court erred in calculating the amount

that the Casses still owed on the underlying judgment when it computed the amount of post

judgment interest without help from expert witness testimony. Hibernia contends that the trial

court improperly relied on two exhibits that Ferae submitted in support of its supplemental motion

24 for summary judgment (Exhibits O and O-1) in which Hibernia’s business manager, Stephen

O’Connell, provided his proposed calculation of the amount of interest that had accrued as of the

date of the summary judgment hearing. Exhibit O is O’Connell’s declaration stating that based on

the judgment’s principal balance and accrued post judgment interest, “as of December 11, 2020,

Frank Cass owes $44,403,075.48 and Michael Cass owes $6,292,459.15.” In support of his

calculation, O’Connell attached Exhibit O-1, which consisted of a chart showing how he computed

the amount of interest for each year since the judgment was first entered in 1997. O’Connell added

that in calculating the amounts owed, he considered the $25,000 credit that Frank Cass was entitled

to from the 1997 execution on the judgment, but stated that, to his knowledge, Ferae had never

received any payments or property from the Casses to satisfy the judgment or any of the judgment

liens that it obtained from Patco. The trial court impliedly adopted O’Connell’s calculation, as its

final judgment used the same figures in setting forth the amounts owed by the Casses as of

December 11, 2020.

Hibernia objected to Ferae’s Exhibit O-1, contending that O’Connell’s interest calculation

violated Rule 701 of the Texas Rules of Civil Procedure, as it amounted to “an expert opinion

without any disclosure of the qualification or basis for such expert opinion.” On appeal, Hibernia

re-urges the same claim, resulting in the trial court improperly relying on the exhibit to calculate

the amount of interest owed on the judgment. This argument, however, suffers from the same

problem as Hibernia’s other evidence objections—the trial court never expressly ruled on the

objection, and it is therefore waived. See Seim, 551 S.W.3d at 166.

Moreover, even if we were to consider this issue, we disagree with the proposition that the

trial court could not make its own calculation, and nothing in our record shows the calculation

used was wrong. The Texas Finance Code, as well as related case law, place the calculation of

interest on money judgments in the hands of the trial court. The Code explains the appropriate rate

25 of interest and how it compounds. TEX.FIN.CODE ANN. §§ 304.001-007. The Texas Supreme Court

has recognized that both trial courts and appellate courts have the authority to calculate the amount

of interest owed on a judgment in accordance with the statutory provisions found in the Finance

Code. See, e.g., Long v. Castle Texas Prod. Ltd. P’ship, 426 S.W.3d 73, 87 (Tex. 2014)

(recognizing trial court’s responsibility to calculate the proper amount of post judgment interest);

Am. Paper Stock Co. v. Howard, 528 S.W.2d 576, 577 (Tex. 1975) (per curiam) (supreme court

reformed lower court’s judgment to reflect the correct amount of interest owed on the trial court’s

judgment); see also Mid-Century Ins. Co. of Texas v. Barclay, 880 S.W.2d 807, 813 (Tex.App.--

Austin 1994, writ denied) (holding that a trial court must “calculate post judgment interest on the

total amount of damages as directed by statute”). Neither the Code nor any of the cases we have

reviewed have suggested that a court must have expert witness testimony in making its calculation

of post judgment interest.

And we find it significant that Hibernia has not pointed to any substantive error that it

believes the trial court made in calculating the amount of post judgment interest owed on the

underlying judgment. For these reasons, we find no basis for concluding that the trial court

incorrectly calculated the amount owed on the final judgment.

3. Hibernia failed to raise a question of fact on the issue of whether the underlying judgment was satisfied by payments from third parties

We next consider whether Hibernia raised a fact question on whether the underlying

judgment had been satisfied by payments that Ferae’s predecessors-in-interest received from third

parties. In general, we agree with Hibernia that if an underlying judgment is satisfied, this will

extinguish any judgment lien that was based on that judgment. See Equitable Trust Co., 644

S.W.2d at 52 (recognizing that a judgment lien is extinguished when the underlying judgment is

satisfied). Even so, we do not believe that the evidence relating to the two payments received by

26 Ferae’s predecessors-in-interest raised a question of fact on the issue of whether Ferae’s judgment

lien was extinguished.

a. The $20,200,000 payment based on the Brock Assignment

We first consider Hibernia’s argument that the $20,200,000 payment that Patco received

from Crown Rock and Parsley in September 2016 should have been credited to the underlying

judgment. We agree with Ferae that the payment was not intended to serve as a credit on the

underlying judgment.

The $20,200,000 payment was received in exchange for (1) Patco’s agreement to transfer

its interests in 1,000 acres in Upton County, and (2) Patco’s partial assignment of its interests in

any judgment liens in the county that might affect Crown Rocks’ interests in that property. Aside

from the fact that it is impossible to discern how much of this payment was intended as

compensation for the partial assignment of the judgment lien—as opposed to the transfer of the

1,000 acres—any amounts Patco received for the assignment of the judgment lien could not be

considered a credit on the underlying judgment. Instead, the assignment of the lien was a sale of

Patco’s partial interest in the underlying judgment against the Casses, as permitted by the Texas

Property Code. See generally TEX.PROP.CODE ANN. § 12.014 (a) (establishing right of a party to

sell a judgment). And in turn, the sale of a judgment (or a partial interest in a judgment) is not

considered a credit on the judgment. Rather, it is intended to give the transferee the right to

maintain any action that the transferor may have brought against the judgment debtors to collect

on the judgment. See Williams v. Hedrick, 131 S.W.2d 187 (Tex.App.--Beaumont 1939, writ

dism’d judgm’t cor.) (a stranger to a judgment who pays to take an assignment of judgment, does

not extinguish the judgment, but obtains the right to execute on the judgment); Hadad v. Ellison,

283 S.W. 193, 198 (Tex.App.--Beaumont 1926, no writ) (recognizing principle that a judgment is

not extinguished where the judgment is paid off by a stranger to the judgment and the assignment

27 and transfer taken by him); BW Vill., Ltd. v. Tricon Enterprises, Inc., 879 S.W.2d 205, 207-09

(Tex.App.--Houston [14th Dist.] 1994, writ denied) (recognizing that where an assignee “paid the

purchase price for the assignment of the judgment interests” against landowner for unpaid taxes,

the amount it paid was not meant to pay off the debtors’ existing tax debt, and instead was meant

to give the assignee the right to enforce the assignor’s interests). In other words, rather than

satisfying the judgment, an assignment keeps the judgment alive and in full force by giving the

assignee the right to collect on it. See Casray Oil Corp. v. Royal Indem. Co., 165 S.W.2d 244, 248

(Tex.App.--Galveston 1942), aff’d, 169 S.W.2d 955 (1943) (recognizing the right of an assignee

of a judgment to sue to execute on the judgment against the judgment debtors); River Consulting,

Inc. v. Sullivan, 848 S.W.2d 165, 169 (Tex.App.--Houston [1st Dist.] 1992, writ denied),

disapproved of on other grounds by Formosa Plastics Corp. USA v. Presidio Engineers &

Contractors, Inc., 960 S.W.2d 41 (Tex. 1998) (“An assignee may maintain in its own name any

action that the assignor may have brought, and unless the assignor has retained some right or

interest therein . . .”).

Accordingly, the trial court did not err in disregarding the $20,200,000 payment that Patco

received from Crown Rock and Parsley as a credit on the underlying judgment in calculating the

amount still owed by the Casses.

b. The $300,000 payment based on the PCORE lien release

We next consider the $300,000 payment that the Stephens Entities received from PCORE

in April 2015. That payment was made in exchange for the partial release of a judgment lien that

encumbered a mineral lease Frank Cass owned in Reagan County. Based on the record before us,

this transaction was not a sale or assignment of the Stephens Entities’ interests in the underlying

judgment, but was a release of its interests in the lien itself. And, as set forth above, a judgment

may be satisfied in whole or in part by a “release that is signed by the party entitled to receive

28 payment of the judgment or by that person’s agent or attorney of record.” TEX.PROP.CODE ANN. §

52.005(2); see also Rapp, 123 S.W.3d at 434 (a release of judgment is itself a discharge and

surrender of all rights of the judgment creditor in the judgment); Lyda Swinerton Builders, Inc. v.

Cathay Bank, 409 S.W.3d 221, 231 (Tex.App.--Houston [14th Dist.] 2013, pet. denied) (by signing

a release of lien, creditor intended to release the full amount of the lien, but did not intend to release

the remaining underlying debt it was owed).

But we need not decide whether this payment should have been credited to the underlying

judgment, as nothing in the record supports a finding that the amount of that credit would have

satisfied the underlying judgment or otherwise extinguished Ferae’s judgment lien. As Ferae points

out, when the trial court entered its Final Judgment giving Ferae the right to foreclose on its lien,

the Casses owed a total of $50,695,534.63. A credit of $300,000 would have only marginally

reduced that amount and would not have satisfied the underlying judgment or otherwise

extinguished Ferae’s judgment lien. See generally Broadway Plan v. Ravenstein, 364 S.W.2d 741,

744 (Tex.App.--Fort Worth 1963, writ ref’d n.r.e.) (where a judgment exists against two judgment

debtors, the judgment is extinguished only when the entire amount of the judgment is paid, and

therefore, “the payment of a sum less than the amount due on the judgment does not release other

judgment debtors or extinguish the judgment”), citing 34 TEX.JUR.2d, p. 743, sec. 634; Kirby v.

Fitzgerald, 89 S.W.2d 408, 411 (Tex. [Comm’n Op.] 1936). We thus conclude that Hibernia’s

evidence of this payment did not raise a question of fact that would have precluded the trial court

from granting summary judgment on Ferae’s foreclosure suit.

4. Patricia Stephens’ declaration did not raise a question of fact

Finally, we consider Hibernia’s argument that Patricia Stephens’ declaration raised a

question of fact on the issue of whether the underlying judgment was either partially or fully

29 satisfied by prior payments made by third parties that should have been credited to the judgment.

We disagree with this argument as well.

Patco, as a third-party defendant, filed the declaration the day before the summary

judgment hearing in response to TRP’s motion to compel discovery. In the declaration, Stephens

asserted that she located 16 boxes of documents previously maintained by her now-deceased

landman, which could have potentially contained documents responsive to TRP’s motion to

compel, pertaining to payments that the Stephens Entities and Patco had received relating to the

Casses’ properties. At the hearing, TRP’s attorney stated that he wanted to examine the documents

to determine whether any reflected undisclosed payments to Patco on the judgment. However,

neither TRP nor Hibernia requested a continuance to allow them time to review those documents.

On appeal, Hibernia contends that the trial court erroneously “excluded discovery” of these

documents, and that more discovery was necessary to determine whether the underlying judgment

had been satisfied by third-party payments Hibernia contends that without resolution of this issue,

a question of fact remained on whether Ferae’s judgment lien had been extinguished, and that it

was therefore premature for the trial court to grant summary judgment on Ferae’s foreclosure suit.

Setting aside the question of whether the declaration, filed as a part of a discovery dispute can be

considered part of the summary judgment record, we conclude the declaration does not raise a

question of fact that precluded granting the summary judgment.

In her declaration, Stephens stated that there might be documents “potentially relevant” to

TRP’s discovery request in the boxes in her possession, but she did not specify what those

documents might be or how they might affect Ferae’s right to foreclose on the judgment lien.

Neither TRP nor Hibernia tried to establish that there were in fact responsive documents in those

boxes. Nor did they move for a continuance to give them time to review the documents to

determine whether any of them might impact Ferae’s right to foreclose on its lien. See Tenneco

30 Inc. v. Enter. Products Co., 925 S.W.2d 640, 647 (Tex. 1996) (“When a party contends that it has

not had an adequate opportunity for discovery before a summary judgment hearing, it must file

either an affidavit explaining the need for further discovery or a verified motion for continuance.”),

citing TEX.R.CIV.P. 166a(g), 251, 252; Gabaldon v. General Motors Corp., 876 S.W.2d 367, 369

(Tex.App.--El Paso 1993, no writ); see also Chico Auto Parts & Serv., Inc. v. Crockett, 512 S.W.3d

560, 579 (Tex.App.--El Paso 2017, pet. denied). As well, Hibernia did not request leave of court

to introduce the documents into evidence after the hearing, as permitted by Rule 166a(c)—

although the trial court did not issue its final judgment in the matter until April 15, 2021, several

months after the December 2020 hearing. See TEX.R.CIV.P. 166a(c) (trial court may base its

decision on affidavits and other evidence on file at the time of the hearing, “or filed thereafter and

before judgment with permission of the court”). Finally, Hibernia did not complain in its motion

for new trial about its inability to review those documents, or request a new trial on that basis. So

although Hibernia had the opportunity to explore this issue in more depth in the trial court,

Hibernia failed to do so and thereby failed to meet its burden of establishing that there were any

documents in the boxes that would have shown that the underlying judgment was satisfied or that

Ferae’s judgment lien had been extinguished. 6

Accordingly, for the reasons set forth above, we conclude that Hibernia did not meet its

burden of establishing that a question of fact remained on the issue of whether Ferae had a valid,

subsisting judgment lien on which it could foreclose.

Hibernia’s Issue Two is overruled.

6 Moreover, if Hibernia is complaining that it was not given an adequate opportunity to conduct discovery to review the contents of the 16 boxes of documents, we conclude that Hibernia waived that issue by failing to raise it in the trial court. See, e.g., M.G.M. Grand Hotel, Inc. v. Castro, 8 S.W.3d 403, 412 (Tex.App.--Corpus Christi 1999, no pet.) (“Like most other rights, in order to complain on appeal of a trial court’s failure to allow further discovery . . . the plaintiff must request it from the trial court.”), citing TEX.R.APP.P. 33.1.

31 VI. THE FINAL JUDGMENT CORRECTLY REFLECT FERAE’S PROPORTONATE INTERESTS IN THE BRANCH LEASE In Issue Three, Hibernia contends that the trial court’s order of sale misstated, or is at least

ambiguous, in describing the nature of Ferae’s interests in the Branch Lease, as it ignored a “third

party’s working interest.” Hibernia phrases this as a sufficiency of the evidence challenge and

contends that there was a complete absence of any evidence to support a finding that Ferae had

any right to foreclose on the third party’s working interest. According to Hibernia, the judgment

therefore gave Ferae more relief than it requested and more relief than that to which it was entitled.

See generally Rouhana, 556 S.W.3d at 477 (discussing principle that a judgment must conform to

the pleadings and proof). We disagree, as we find that the order of sale correctly set out Hibernia’s

interest in the Branch Lease.

The trial court’s order of sale described the Branch Lease as “that Oil, Gas and Other

Mineral Lease from Ed Guy Branch and wife, Mona Glee Branch to William G. Cass, dated March

6, 1984, and recorded in Volume 200, Page 448, Oil and Gas Records, Reagan County, Texas.” It

then describes Hibernia’s interest to be sold as “[a]n 82% interest in the Branch Lease, subject to

its proportionate share of lease royalties, overriding royalties and other burdens totaling 25%

(thereby delivering a 61.5% net revenue interest to said 82% interest) for the East 80 acres of the

West half of the San Antonio Ditch Company Survey No. 1 for depths below the base of the Dean

Formation.” According to Hibernia, this description does not account for “a 1/16 mineral interest

which Hibernia received free and clear of [Ferae’s] Judgment Lien by way of a completely separate

oil and gas lease.” Hibernia explains that this 1/16th working interest originally came from Ed and

Maud Branch, who conveyed it to O.P. Becken in 1927, and that in 2019, Hibernia entered into an

oil and gas lease with O.P. Becken Land and others for this 1/16th interest (the Becken Lease).

Hibernia contends that the Casses never owned this 1/16th interest, and that it therefore should

32 have been expressly excluded from the sale. According to Hibernia, the order of sale therefore

should have described the interest to be sold as a “76.8750% working interest (57.65625% net

revenue interest)” in the Branch Lease.

Ferae responds by pointing out that the term, “the Branch Lease,” as used in the order of

sale, is a defined term that refers only to the lease conveyed in 1984 by the Branch entities to

William Cass, as recorded in the Reagan County oil and gas records, a copy of which was in

Ferae’s summary judgment evidence. In turn, the record contains documents showing that William

Cass assigned a portion of his interests in the Branch Lease to Frank and Michael Cass in 1984,

with Frank and Michael each receiving a 40% interest, and a third-party receiving 2%, which was

later assigned to Michael Cass in 1987. In addition, the record contains a “Stipulation of Interest”

signed by all three Cass brothers, which was filed in the Reagan County records as Exhibit A to

the Branch Lease, referencing both the 1984 and 1987 assignments of the lease, and reflecting that

(1) Michael Cass had a 42% working interest, with a net revenue interest of 31.5%; (2) Frank Cass

had a 40% working interest, with a net revenue interest of 30%; and (3) William Cass had an 18%

working interest, with a net revenue interest of 19.75%. As Ferae points out, this directly

corresponds to the total 82% working interest owned by the judgment debtors, and the total 61.5%

net revenue interest they owned in the Branch Lease under the order of sale. As Ferae also points

out, the 1/16th working interest that Hibernia and others have in the Becken Lease is completely

separate from the Casses’ interests in the Branch Lease. Accordingly, we agree with Ferae that the

order of sale correctly stated the nature of the Casses’ interest in the Branch Lease, and did not

encroach on any of the interests Hibernia or other third parties may have in the Becken Lease.

We note, however, that the order of sale does not reflect that Michael and Frank have

different interests in the Branch Lease, (42% and 40% respectively), which will impact the amount

of credit they will each may receive on the underlying judgment upon the sale of Ferae’s interest

33 in the lease. And this will be of importance, as the order of sale states that the sheriff or constable

is to “apply the proceeds [of the sale] to the payment and satisfaction of the Reformed Final

Judgment.” Thus, in the interest of justice, we direct the trial court to modify the order of sale to

reflect the respective interests of the two judgment debtors on remand. See generally TEX.R.APP.P.

43.6 (a “court of appeals may make any other appropriate order that the law and the nature of the

case require”).

Hibernia’s Issue Three is overruled, subject to our directions to the trial court to modify its

Order of Sale on remand as explained above.

CONCLUSION

We affirm the trial court’s final judgment granting summary judgment on Ferae’s request

to foreclose on its judgment lien on the Branch Lease, and its order directing the sale of Hibernia’s

interest in that lease. But we remand the matter to the district court with directions to modify its

final judgment and order of sale: (1) to reflect that Ferae has settled its dispute with TRP; (2) to

omit the language from the order of sale directing the sheriff or constable to execute on other

property belonging to the judgment debtors in satisfaction of the underlying judgment;, and (3) to

delineate the judgment debtors’ respective interests in the Branch Lease, to ensure that they receive

the appropriate amount of credit on the underlying judgment to which they are entitled.

JEFF ALLEY, Justice

December 20, 2022

Before Rodriguez, C.J., Palafox, and Alley, JJ.