Cuanto Antes Mejor, LLC and M.E. Phillip v. EOG Resources, Inc.

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00691-CV
CUANTO ANTES MEJOR, L.L.C. and M.E. Phillip,
Appellants
v.
EOG RESOURCES, INC.,
Appellee
From the 81st Judicial District Court, Karnes County, Texas
Trial Court No. 15-12-00277-CVK
Honorable Lynn Ellison, Judge Presiding
OPINION ON MOTION FOR REHEARING
Opinion by: Liza A. Rodriguez, Justice
Sitting: Rebeca C. Martinez, Chief Justice 1
Patricia O. Alvarez, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: June 2, 2021
REVERSED AND REMANDED
In this second appeal, Cuanto Antes Mejor, L.L.C. and M.E. Phillip (collectively “Cuanto”)
challenge the trial court’s summary judgment in favor of EOG Resources, Inc. (“EOG”) based on
res judicata and its entry of a take-nothing judgment against Cuanto. In an opinion issued on
December 16, 2020, we reversed the trial court’s judgment and remanded to the trial court for
1
Pursuant to Rule 8(j)(i) of this court’s internal operating procedures, Chief Justice Rebeca C. Martinez has been
substituted in place of retired Chief Justice Sandee Bryan Marion on the panel.
04-19-00691-CV
further proceedings consistent with our opinion. EOG filed a joint motion for rehearing and motion
for reconsideration en banc. After considering the motion and responses, we deny the motion for
rehearing. However, we withdraw our opinion and judgment issued December 16, 2020 and
substitute this opinion and judgment in its place to clarify our analysis. By separate order issued
this date, the court denies the motion for reconsideration en banc as moot.
BACKGROUND
The facts underlying the dispute between Cuanto and EOG over possession and superior
title to an undivided 39/252 interest in a 44.8-acre tract of land in Karnes County, Texas (the
“Property Interest”) are set forth in our prior opinion. See Cuanto Antes Mejor, L.L.C. v. EOG
Resources, Inc., No. 04-17-00504-CV, 2018 WL 1733174, at *1-2 (Tex. App.—San Antonio April
11, 2018, pet. denied). This case began in December 2015 when Cuanto filed a lawsuit against
EOG asserting a trespass to try title claim, along with other title-dependent claims for conversion,
an accounting of the oil and gas production/proceeds, and damages. The parties filed competing
motions for summary judgment solely on the issue of title. Each alleged ownership of the Property
Interest. The trial court denied Cuanto’s motion for partial summary judgment on title, granted
EOG’s motion for summary judgment and awarded possession and superior title to EOG, and
rendered a take-nothing final judgment against Cuanto. Cuanto appealed to this court.
On appeal, Cuanto argued the trial court erred in granting summary judgment for EOG on
the issue of title because its own summary judgment evidence proved Cuanto held title. We agreed
and held that Cuanto conclusively established its title to the disputed Property Interest through a
foreclosure sale and sheriff’s tax deed and that its partial summary judgment motion should have
been granted by the trial court. Id. at *8. We further held that EOG’s challenge to Cuanto’s claim
to title was barred by the limitations period in the Texas Tax Code. Id. We therefore reversed the
trial court’s judgment and rendered judgment stating that Cuanto held superior title to the Property
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Interest and awarding Cuanto possession. Id. EOG sought review in the Texas Supreme Court,
but its petition was denied. The mandate issued on September 24, 2018, thereby making our
judgment final.
After it prevailed on appeal on the issue of title, Cuanto sought to pursue its title-dependent
claims for conversion, an accounting, and damages against EOG in the trial court under the same
cause number, Trial Court No. 15-12-00277-CVK. 2 Cuanto filed a “Motion for an Amended
Docket Control Order” on December 6, 2018. After a hearing, the trial court granted Cuanto’s
motion and set Cuanto’s remaining claims for trial over EOG’s objection that there was already a
final judgment and the case was over. Cuanto subsequently amended its petition to add other
claims against EOG, including fraud and violations of the Texas Natural Resources Code. On
September 3, 2019, EOG filed a traditional motion for summary judgment based on the affirmative
defense of res judicata and, in the alternative, a plea in abatement. Cuanto contested EOG’s
assertion of res judicata by filing a response claiming there was no prior final judgment on the
merits of its title-dependent claims — either in the trial court or the appellate court. See Travelers
Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010) (elements of res judicata are (1) a prior final
judgment on the merits by a court of competent jurisdiction, (2) identity of parties or those in
privity with them, and (3) a second action based on the same claims that were raised or could have
been raised in the first action). The trial court granted EOG’s summary judgment on the basis of
res judicata and issued a take-nothing judgment against Cuanto (for the second time) on October
3, 2019. Cuanto brought the appeal now before us.
2
Cuanto initially filed a separate lawsuit but entered a nonsuit.
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DISCUSSION
Cuanto argues the trial court’s grant of summary judgment based on res judicata is
erroneous because neither the trial court nor this court entered a final judgment disposing of
Cuanto’s title-dependent claims against EOG on their merits. Cuanto asserts it was entitled to
pursue those claims after the question of title was resolved in its favor in the first appeal. EOG
replies that this court’s April 11, 2018 judgment on title is the final judgment in the case and there
can be only one final judgment. EOG contends that (1) Cuanto waived its title-dependent claims
by failing to brief them in the first appeal and by failing to file a motion for rehearing or petition
for discretionary review to request a remand on those claims, (2) the trial court lost jurisdiction to
take any further action in the case after our April 11, 2018 judgment became final, and (3) it (EOG)
properly prevailed on its summary judgment motion because it conclusively established all the
elements of res judicata.
Waiver and Jurisdiction
When the trial court denied Cuanto’s partial summary judgment motion on title and granted
EOG’s competing summary judgment motion, it resolved the issue of title by holding that EOG
conclusively established it held superior title to the Property Interest. The trial court also entered
a “take-nothing judgment” against Cuanto. By entering the take-nothing judgment in favor of
EOG, the trial court necessarily disposed of all of Cuanto’s pending claims — its claim for title as
well as its title-dependent claims for conversion, an accounting, and damages pled in its second
amended petition. See Fed. Deposit Ins. Corp. v. Lenk, 361 S.W.3d 602, 612 (Tex. 2012) (claim
for attorney’s fees was necessarily disposed of when trial court ruled in other party’s favor);
Lehmann v. Har-Con Corp., 39 S.W.3d 91, 200 (Tex. 2001) (entry of a take-nothing judgment
against the plaintiff on all claims it asserted is a final judgment, even if the defendant only moved
for a partial summary judgment; it may be an erroneous judgment, but it is not interlocutory); see
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also Gen’l Telephone Co. of Southwest v. Blacksher, 742 S.W.2d 465, 468 (Tex. App.—Houston
[1st Dist.] 1987, writ denied) (take-nothing judgment disposed of all claims in plaintiff’s pleadings
even though it did not specifically mention each claim). By disposing of all parties and claims
pending before it, the trial court therefore entered a final appealable judgment in the case.
Lehmann, 39 S.W.3d at 195.
When this court determined in the first appeal that the trial court erred in granting summary
judgment on title in favor of EOG, we took two actions -- we reversed the trial court’s take-nothing
judgment in whole and we rendered judgment on title for Cuanto. See Cuanto Antes Mejor, 2018
WL 1733174, at *8. As to the rendition, when both parties move for summary judgment on the
same issue and the trial court grants one motion and denies the other motion, the reviewing court
considers the summary judgment evidence presented by both sides, determines all questions
presented, and, if it determines the trial court erred, it renders the judgment the trial court should
have rendered. Tex. Workforce Comm’n v. Wichita City, 548 S.W.3d 489, 492 (Tex. 2018). Our
judgment in favor of Cuanto on title became final when the mandate issued. See TEX. R. APP. P.
51.1(b). “A mandate issued by the appellate court is a formal command requiring the lower court
to comply with the appellate court’s judgment.” Cessna Aircraft Co. v. Aircraft Network, LLC,
345 S.W.3d 139, 144 (Tex. App.—Dallas 2011, no pet.). Once final, our judgment stating that
Cuanto holds superior title to the Property Interest became the judgment of the trial court. Id.(“[w]hen an appellate court affirms a trial court’s judgment or renders the judgment the trial court
should have rendered, that judgment becomes the judgment of both courts) (citing Cook v.
Cameron, 733 S.W.2d 137, 139 (Tex. 1987) (op. on reh’g)).
With respect to our reversal of the trial court’s take-nothing judgment against Cuanto, when
a lower court’s judgment is reversed in whole, that judgment is without effect, as if it had never
been rendered. Phillips v. Bramlett, 407 S.W.3d 229, 238 (Tex. 2013); Min v. H & S Crane Sales,
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Inc., 472 S.W.3d 773, 777 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). Therefore, our
reversal nullified the take-nothing judgment on Cuanto’s title-dependent claims and placed “the
parties . . . [in] the same position on these issues as they occupied before the trial court’s judgment
was rendered.” Cessna, 345 S.W.3d at 145; Swank v. Cunningham, 258 S.W.3d 647, 663 (Tex.
App.—Eastland 2008, pet. denied) (reversal of judgment returns parties to status quo). When the
mandate effectuating our opinion and judgment issued, it made Cuanto’s title-dependent claims
live again but did not resolve them. See Jay Petroleum LLC v. EOG Resources, 332 S.W.3d 534,
539 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
EOG asserts that Cuanto waived consideration of the merits of its title-dependent claims
by failing to file a motion for rehearing or petition for discretionary review to correct the mandate
that, according to EOG, did not return jurisdiction of the case to the trial court. 3 However, as in
Jay, our opinion and mandate, read together, granted Cuanto’s request for rendition in its favor on
title and effectively granted Cuanto’s request for a remand for further proceedings on its title-
dependent claims by reversing the take-nothing judgment, thereby making the claims live again.
See Jay, 332 S.W.3d at 539-40 (construing similar mandate language reversing the trial court’s
judgment in favor of appellee on its summary judgment motion and rendering judgment granting
appellant’s summary judgment motion and ordering that “this decision be certified below for
observance” as including a remand and order to the trial court to consider the now-live claims).
Thus, Cuanto’s failure to file a motion for rehearing or petition for discretionary review had no
effect on the trial court’s jurisdiction to consider the merits of the now-live claims. See id. at 540
3EOG also asserts Cuanto failed to request a remand and failed to brief its title-dependent claims. However, Cuanto’s
brief in the first appeal expressly stated, “[a]ppellants request this court to reverse the Judgment of the trial court
granting EOG’s Motion for Summary Judgment and Judgment denying the ‘Cuanto’ and ‘Phillip’ Motion for Partial
Summary Judgment, and remand the case to the trial court for further proceeding [sic] to determine ‘Cuanto’s’ actual
and exemplary damages.” Further, Cuanto’s prayer for appellate relief asked in part “that the case be remanded to the
trial court for further proceedings to determine ‘Cuanto’s’ damages.” Cuanto did not waive its title-dependent claims
by “failing to brief their merits” in the first appeal.
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(appellant “had no reason to request rehearing or petition the Texas Supreme Court because the
mandate authorized the trial court to consider the [newly live] claims”). We hold that Cuanto did
not waive its title-dependent claims and the trial court has jurisdiction to consider the claims on
their merits.
Summary Judgment on Res Judicata
We review a trial court’s decision to grant summary judgment de novo. Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In a traditional motion, the party moving for
summary judgment has the burden to prove there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co.,
690 S.W.2d 546, 548 (Tex. 1985). Defendants who move for summary judgment may meet this
burden by either (1) disproving at least one essential element of each theory of recovery, or (2)
conclusively proving all elements of an affirmative defense. S&I Mgmt., Inc. v. Choi, 331 S.W.3d
849, 852 (Tex. App.—Dallas 2011, no pet.). Evidence favorable to the respondent will be taken
as true, and every reasonable inference will be indulged in favor of the respondent, resolving any
doubts in its favor. Nixon, 90 S.W.2d at 549.
By granting summary judgment for EOG based on res judicata, the trial court found that
EOG conclusively established the three necessary elements of its affirmative defense: (1) a prior
final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in
privity with them; and (3) a second action based on the same claims that were raised or could have
been raised in the first action. TEX. R. CIV. P. 94; Joachim, 315 S.W.3d at 862; Amstadt v. U.S.
Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). The purpose of res judicata is to bar a second suit
by parties on matters actually litigated in a previous suit as well as on claims that could, and should
through the exercise of diligence, have been litigated in the prior suit. Getty Oil Co. v. Ins. Co. of
N. Am., 845 S.W.2d 794, 799 (Tex. 1992); Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631
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(Tex. 1992) (transactional approach to res judicata requires claims arising out of the same subject
matter to be litigated in a single lawsuit).
Here, the first and third elements of res judicata are absent. In the original judgment,
Cuanto’s title-dependent claims were disposed of through a take-nothing judgment because the
court concluded Cuanto did not hold title to the Property Interest; the trial court never reached the
merits of the claims. Thus, the final judgment was not based on “the merits” of the claims as
required for the first element. See Joachim, 315 S.W.3d at 862; see also Jay, 332 S.W.3d at 540(stating “the first element of res judicata does not exist because “the matter . . . was never finally
determined”) (citing Tex. Water Rights Comm’n v. Crow Iron Works, 582 S.W.2d 768, 771 (Tex.
1979)). After our holding that it held title, Cuanto sought to recover on its title-dependent claims
within the same cause number as the prior take-nothing judgment, not through a separate lawsuit,
i.e., a “second action,” as required for the third element. See Joachim, 315 S.W.3d at 862. We
therefore conclude that EOG failed to meet its burden of proof on the first and third elements of
its affirmative defense of res judicata. 4 TEX. R. CIV. P. 166a(c); S&I Mgmt., 331 S.W.3d at 852.
Because EOG failed to conclusively establish that it was entitled to judgment as a matter of law
based on res judicata, we hold the trial court erred in granting EOG’s motion for summary
judgment.
4
In its motion for rehearing, EOG asserts that Cuanto “waived” any deficiency on the third element because its
summary judgment response only challenged the first element of res judicata. A non-movant is not required to respond
to a traditional summary judgment motion. TEX. R. CIV. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678–79 (Tex. 1979). The movant must establish its entitlement to summary judgment on the ground
expressly presented in its motion by conclusively proving all essential elements of its cause of action or defense as a
matter of law. City of Houston, 589 S.W.2d at 678. “Summary judgments must stand on their own merits, and the
non-movant’s failure to answer or respond cannot supply by default the summary judgment proof necessary to
establish the movant’s right.” Id. “[T]he non-movant needs no answer or response to the motion to contend on appeal
that the grounds expressly presented to the trial court by the movant’s motion are insufficient as a matter of law to
support summary judgment.” Id. However, apart from the legal sufficiency of the movant’s grounds for summary
judgment, any other argument against granting summary judgment must be presented by the non-movant in the trial
court. Id.; Khan v. Firstmark Credit Union, No. 04-12-00465-CV, 2013 WL 2247456, at *2 (Tex. App.—San Antonio
May 22, 2013, pet. denied) (mem. op.).
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In sum, we conclude Cuanto is not barred by res judicata or waiver from pursuing its title-
dependent claims for relief. Our opinion and mandate in the first appeal necessarily returned
jurisdiction to the trial court to resolve Cuanto’s claims made live by our reversal and rendition
that it held superior title to the Property Interest. See Jay, 332 S.W.3d at 540-41; see also Cessna,
345 S.W.3d at 144 (scope of mandate is determined by referring to both the appellate opinion and
the mandate itself). Our reversal of the trial court’s judgment that EOG held title and that Cuanto
should take nothing on its claims returned the parties to the same position they held before the trial
court’s judgment. Cessna, 345 S.W.3d at 145; Swank, 258 S.W.3d at 663 (reversal of judgment
returns parties to status quo). We therefore hold that the trial court erred in granting summary
judgment for EOG based on res judicata and in entering a take-nothing judgment against Cuanto
on its title-dependent claims.
CONCLUSION
Based on the foregoing reasons, we reverse the trial court’s judgment granting summary
judgment for EOG based on res judicata and entering a take-nothing judgment against Cuanto, and
we remand the cause to the trial court for consideration of Cuanto’s title-dependent claims on their
merits.
Liza A. Rodriguez, Justice
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