NO. 07-10-0001-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
FEBRUARY 4, 2010
______________________________
IN RE ROBERT PAT WHITEAKER AND WHITEAKER RANCHES, INC., RELATORS
_________________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
ORDER ON PETITION FOR WRIT OF MANDAMUS
Relators, Robert Pat Whiteaker and Whiteaker Ranches, Inc., (hereinafter
collectively referred to as Relators) filed a petition for writ of mandamus alleging an abuse
of discretion by the trial court in the signing of an order dated January 4, 2010, approving
the sale of receivership property and authorizing and directing the Receiver, Wayne
Cogdill, to complete the sale pursuant to the terms of a certain Farm and Ranch Purchase
Contract between Whiteaker Family Ranches Limited Partnership, as seller, and Doug
Lathem, as buyer, (hereinafter referred to as the Lathem Contract). We granted
Relators’ emergency motion for temporary relief and stayed the enforcement of that order pending disposition of the original petition. For the reasons stated below, we
conditionally grant mandamus relief.
Background
The underlying proceeding was originally initiated on March 29, 2007, when
Martha Lane Clark, Debra Carol Horn, Travis Wayne Horn, Travis Lee Parker, Otis
Brandon Parker, and Monica Carol Randall (hereinafter referred to as Plaintiffs), filed
their original petition seeking the appointment of a receiver pertaining to the assets of
Whiteaker Family Ranches Limited Partnership. Relator, Whiteaker Ranches, Inc., is
the general partner of the Whiteaker Family Ranches Limited Partnership and Relator,
Robert Patrick Whiteaker, is president of the general partner. Together, Plaintiffs and
Relators make up the entire ownership of the limited partnership. The primary asset of
the limited partnership was, and is, a family farm and ranch located in Hartley County,
Texas.
On July 20, 2007, the trial court entered an order appointing Wayne Cogdill as
receiver. Pursuant to that order, Cogdill was authorized, subject to his qualification and
control of the court, to do any and all acts necessary to the proper and lawful conduct of
the receivership. Pursuant to that authority, on September 30, 2008, Cogdill participated
in the execution of a lease agreement between Whiteaker Family Ranches Limited
Partnership, as lessor, and Kevin and Kay Spielman, d/b/a Kevin Spielman Cattle Co., as
lessee, pertaining to the property of the limited partnership.
2 Thereafter, the Lathem Contract was negotiated, and on June 9, 2009, the
contract was signed by Doug Lathem as buyer. The contract was not signed by the
general partner, Whiteaker Ranches, Inc., or by its principal, Robert Patrick Whiteaker,
nor was it signed by the Receiver. It was, however, signed by the limited partners, Debra
Whiteaker Horn and Martha Lane Clark.
On July 29, 2009, Plaintiffs filed their Motion to Authorize Sale of Property,
requesting the trial court to authorize the Receiver to sign the contract on behalf of the
limited partnership. At a hearing conducted September 14, 2009, the trial court orally
announced its decision to authorize the sale in accordance with the Lathem Contract.
On September 24, 2009, prior to the entry of a written order to that effect, by agreement of
the parties, Plaintiffs’ motion was withdrawn and the trial court entered an order denying
the relief requested “as moot.”
Four days later, on September 28, 2009, Doug Lathem attempted to intervene into
this proceeding by filing his Plea in Intervention. By that pleading, Lathem sought
specific performance of the contract, together with monetary damages. On October 8,
2009, Lathem filed a motion seeking to have the trial court set aside its September 24,
2009 order denying Plaintiffs’ request to authorize the Receiver to sign the contract on
behalf of the limited partnership. In response to that motion, both Plaintiffs and Relators
moved to strike Lathem’s attempt to intervene in the receivership proceeding. On
December 7, 2009, the trial court advised the parties that the motions to strike Lathem’s
3 petition in intervention were denied and ordered the “prior ruling of the Court approving
the sale by the Receiver should be reinstated.” On the same day, the trial court signed
an order vacating its order of September 24, 2009. Thereafter, on January 4, 2010, the
trial court entered an order approving the Lathem Contract, amending certain dates within
the contract, and ordering the Receiver to complete the sale pursuant to the terms of that
contract.
On January 7, 2010, this Court granted Relators’ motion for emergency relief and
stayed enforcement of the trial court’s order of January 4, 2010, pending disposition of
this mandamus proceeding. This Court further ordered all parties to file a response to
the petition for writ of mandamus by January 18, 2010. That deadline was later extended
to January 25, 2010. Pursuant to this Court's order, Plaintiffs timely filed a response
wherein they agreed that the relief being sought by Relators was appropriate. Lathem
filed a response on January 27, 2010, contending this Court lacks authority to address
complaints concerning his standing and the adequacy of the notice to be given under the
terms of the Spielman lease. Lathem also contends the trial court did not abuse its
discretion in entering the January 4, 2010 order. Notwithstanding the order of this Court,
the Receiver did not favor us with a response.
Mandamus Standard of Review
AMandamus issues only to correct a clear abuse of discretion or the violation of a
duty imposed by law when there is no other adequate remedy by law.@ Walker v. Packer,
4 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding), quoting Johnson v. Fourth Court of
Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding).
Generally, an appellate court may not grant mandamus relief where resolution of a
fact issue underlies the trial court=s decision. Mendoza v. Eight Court of Appeals, 795
S.W.2d 712, 714 (Tex. 1990) (recognizing that an appellate court may not deal with
disputed issues of fact via a mandamus proceeding). However, where there are no
disputed fact issues relevant to the decision, mandamus will lie if the trial court abuses its
discretion by misapplying controlling legal principles to uncontroverted facts. In re
Ferguson, 172 S.W.3d 122 (Tex.App.BBeaumont 2005, orig. proceeding).
Discussion
The Order Appointing Receiver, dated July 11, 2007, did not authorize the
Receiver to sell the assets of the receivership estate. Therefore, Court approval was
required before the Receiver could enter into a contract for the sale of the primary asset of
the receivership. Although the Receiver never sought Court approval, Plaintiffs did
initiate proceedings wherein they requested the Court to authorize the Receiver to sign
the Lathem Contract. Rather than grant that request (i.e., to simply authorize the
Receiver to enter into a contract) the trial court announced its decision to order "the sale
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NO. 07-10-0001-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
FEBRUARY 4, 2010
______________________________
IN RE ROBERT PAT WHITEAKER AND WHITEAKER RANCHES, INC., RELATORS
_________________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
ORDER ON PETITION FOR WRIT OF MANDAMUS
Relators, Robert Pat Whiteaker and Whiteaker Ranches, Inc., (hereinafter
collectively referred to as Relators) filed a petition for writ of mandamus alleging an abuse
of discretion by the trial court in the signing of an order dated January 4, 2010, approving
the sale of receivership property and authorizing and directing the Receiver, Wayne
Cogdill, to complete the sale pursuant to the terms of a certain Farm and Ranch Purchase
Contract between Whiteaker Family Ranches Limited Partnership, as seller, and Doug
Lathem, as buyer, (hereinafter referred to as the Lathem Contract). We granted
Relators’ emergency motion for temporary relief and stayed the enforcement of that order pending disposition of the original petition. For the reasons stated below, we
conditionally grant mandamus relief.
Background
The underlying proceeding was originally initiated on March 29, 2007, when
Martha Lane Clark, Debra Carol Horn, Travis Wayne Horn, Travis Lee Parker, Otis
Brandon Parker, and Monica Carol Randall (hereinafter referred to as Plaintiffs), filed
their original petition seeking the appointment of a receiver pertaining to the assets of
Whiteaker Family Ranches Limited Partnership. Relator, Whiteaker Ranches, Inc., is
the general partner of the Whiteaker Family Ranches Limited Partnership and Relator,
Robert Patrick Whiteaker, is president of the general partner. Together, Plaintiffs and
Relators make up the entire ownership of the limited partnership. The primary asset of
the limited partnership was, and is, a family farm and ranch located in Hartley County,
Texas.
On July 20, 2007, the trial court entered an order appointing Wayne Cogdill as
receiver. Pursuant to that order, Cogdill was authorized, subject to his qualification and
control of the court, to do any and all acts necessary to the proper and lawful conduct of
the receivership. Pursuant to that authority, on September 30, 2008, Cogdill participated
in the execution of a lease agreement between Whiteaker Family Ranches Limited
Partnership, as lessor, and Kevin and Kay Spielman, d/b/a Kevin Spielman Cattle Co., as
lessee, pertaining to the property of the limited partnership.
2 Thereafter, the Lathem Contract was negotiated, and on June 9, 2009, the
contract was signed by Doug Lathem as buyer. The contract was not signed by the
general partner, Whiteaker Ranches, Inc., or by its principal, Robert Patrick Whiteaker,
nor was it signed by the Receiver. It was, however, signed by the limited partners, Debra
Whiteaker Horn and Martha Lane Clark.
On July 29, 2009, Plaintiffs filed their Motion to Authorize Sale of Property,
requesting the trial court to authorize the Receiver to sign the contract on behalf of the
limited partnership. At a hearing conducted September 14, 2009, the trial court orally
announced its decision to authorize the sale in accordance with the Lathem Contract.
On September 24, 2009, prior to the entry of a written order to that effect, by agreement of
the parties, Plaintiffs’ motion was withdrawn and the trial court entered an order denying
the relief requested “as moot.”
Four days later, on September 28, 2009, Doug Lathem attempted to intervene into
this proceeding by filing his Plea in Intervention. By that pleading, Lathem sought
specific performance of the contract, together with monetary damages. On October 8,
2009, Lathem filed a motion seeking to have the trial court set aside its September 24,
2009 order denying Plaintiffs’ request to authorize the Receiver to sign the contract on
behalf of the limited partnership. In response to that motion, both Plaintiffs and Relators
moved to strike Lathem’s attempt to intervene in the receivership proceeding. On
December 7, 2009, the trial court advised the parties that the motions to strike Lathem’s
3 petition in intervention were denied and ordered the “prior ruling of the Court approving
the sale by the Receiver should be reinstated.” On the same day, the trial court signed
an order vacating its order of September 24, 2009. Thereafter, on January 4, 2010, the
trial court entered an order approving the Lathem Contract, amending certain dates within
the contract, and ordering the Receiver to complete the sale pursuant to the terms of that
contract.
On January 7, 2010, this Court granted Relators’ motion for emergency relief and
stayed enforcement of the trial court’s order of January 4, 2010, pending disposition of
this mandamus proceeding. This Court further ordered all parties to file a response to
the petition for writ of mandamus by January 18, 2010. That deadline was later extended
to January 25, 2010. Pursuant to this Court's order, Plaintiffs timely filed a response
wherein they agreed that the relief being sought by Relators was appropriate. Lathem
filed a response on January 27, 2010, contending this Court lacks authority to address
complaints concerning his standing and the adequacy of the notice to be given under the
terms of the Spielman lease. Lathem also contends the trial court did not abuse its
discretion in entering the January 4, 2010 order. Notwithstanding the order of this Court,
the Receiver did not favor us with a response.
Mandamus Standard of Review
AMandamus issues only to correct a clear abuse of discretion or the violation of a
duty imposed by law when there is no other adequate remedy by law.@ Walker v. Packer,
4 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding), quoting Johnson v. Fourth Court of
Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding).
Generally, an appellate court may not grant mandamus relief where resolution of a
fact issue underlies the trial court=s decision. Mendoza v. Eight Court of Appeals, 795
S.W.2d 712, 714 (Tex. 1990) (recognizing that an appellate court may not deal with
disputed issues of fact via a mandamus proceeding). However, where there are no
disputed fact issues relevant to the decision, mandamus will lie if the trial court abuses its
discretion by misapplying controlling legal principles to uncontroverted facts. In re
Ferguson, 172 S.W.3d 122 (Tex.App.BBeaumont 2005, orig. proceeding).
Discussion
The Order Appointing Receiver, dated July 11, 2007, did not authorize the
Receiver to sell the assets of the receivership estate. Therefore, Court approval was
required before the Receiver could enter into a contract for the sale of the primary asset of
the receivership. Although the Receiver never sought Court approval, Plaintiffs did
initiate proceedings wherein they requested the Court to authorize the Receiver to sign
the Lathem Contract. Rather than grant that request (i.e., to simply authorize the
Receiver to enter into a contract) the trial court announced its decision to order "the sale
in accordance with the Lathem contract." That order was rendered moot when, by
agreement of the parties, the trial court entered its order acknowledging withdrawal of
Plaintiffs' motion. Lathem then sought to revive the trial court's approval of the sale by 5 attempting to intervene. The underlying issue then is whether Lathem had the right to
intervene into this receivership proceeding in general, and/or that portion of the
receivership proceeding pertaining to Plaintiffs’ motion to authorize the sale of the
receivership property.
We will first address the more specific question: Was Lathem authorized to
intervene into that portion of the underlying proceeding pertaining to Plaintiffs’ Motion to
Authorize Sale of Property? Generally, a plea in intervention must be filed before an
order is rendered. In re Barrett, 149 S.W.3d 275, 279 (Tex.App.--Tyler, 2004, no writ).
For purposes of precluding intervention, an order is final if it disposes of every pending
claim and party. Hisaw & Associates Gen. Contractors, Inc. v. Cornerstone Concrete
Sys. Inc, 115 S.W.3d 16, 21 (Tex.App.--Fort Worth, 2003, pet. denied). Although the
Plaintiff's Motion to Authorize Sale of Property was filed bearing the same cause number
as the original receivership proceeding, that proceeding was a separate and distinct
cause of action ancillary to, and independent of, the general receivership proceeding.
Ferrell v. Ertel, 94 S.W.2d 827 (Tex.Civ.App.--Fort Worth 1936, no writ). As such, the
September 14, 2009, order reciting withdrawal of that motion and denying relief, disposed
of every pending claim and party sufficient to preclude intervention into that portion of the
proceeding pertaining to Plaintiffs’ Motion to Authorize Sale of Property. Accordingly,
Lathem's attempt to revive that proceeding by intervening was untimely and the trial court
erred in not granting both Plaintiffs' and Relators' motions to strike Lathem's petition in
intervention. As such, the trial court misapplied controlling legal principles to 6 uncontroverted facts by granting Lathem the relief he requested, to-wit: vacation of its
order of September 14, 2009.
Having determined that Lathem was not authorized to intervene into the ancillary
proceeding pertaining to the motion seeking to authorize the Receiver to sign the Lathem
Contract, we now turn to the question of whether he was authorized to intervene into the
general receivership proceeding.
The basis of Lathem’s intervention in the receivership proceeding is his contention
that he has a contract to purchase receivership property - a contention that is disputed by
both Plaintiffs and Relators. By his petition in intervention, Lathem seeks specific
performance of the contract and the recovery of actual damages. While that interest
might constitute a justiciable interest sufficient to warrant intervening into the general
receivership proceeding, it does not form a basis upon which the trial court can summarily
resolve contested issues pertaining to the validity and enforceability of that contract. To
the extent that the trial court concluded that the Lathem Contract was subject to specific
performance without first addressing issues pertaining to its execution and enforceability,
it failed to afford both Plaintiffs and Relators due process of law. Southern Bag & Burlap
Co. v. Boyd, 120 Tex. 418 (Tex. 1931) (writ of mandamus may issue to correct order
constituting the taking of relator's property and valuable property rights without due
process of law). Accordingly, the trial court also misapplied controlling legal principles by
7 granting Lathem’s request to order specific performance of the Lathem Contract and by
entering its order of January 4, 2010.
Conclusion
Because Relators do not have an adequate remedy at law, we conditionally grant
the mandamus relief requested. We trust that Judge Enns will vacate his order of
December 7, 2009, vacating his prior order denying Plaintiffs’ motion to authorize the sale
of that property, thereby reinstating his order of September 24, 2009, and vacate his order
of January 4, 2010, ordering the Receiver to sell the property in question. The writ will
issue only if he fails to do so.
Patrick A. Pirtle Justice