For=20 The
LAKOTA =
RESOURCES,=20
INC., Appellant PATHEX =
PETROLEUM,=20
INC. AND ONEOK ENERGY SERVICES COMPANY, LP,=20
Appellees
LAKOTA =
RESOURCES,=20
INC., Appellant PATHEX =
PETROLEUM,=20
INC. AND ONEOK ENERGY SERVICES COMPANY, LP,=20
Appellees
On =
Appeal from the=20
164th District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 2002-31310-A & 2002-31310-B
MEMORANDUM=20
OPINION After a hearing in this =
post-judgment=20
garnishment proceeding, the trial court granted a petition in =
interpleader=20
filed by appellee, Oneok Energy Services Company, LP ("OESC"). In =
two=20
issues on appeal, appellant, Lakota Resources, Inc. ("Lakota") We dismiss for lack of=20
jurisdiction.
In the underlying proceedings, =
appellee,=20
Pathex Petroleum, Inc. ("Pathex") received a judgment against =
Lakota on=20
December 6, 2006. On March 5, 2007, the trial =
court signed=20
a modified judgment in the underlying proceeding. Thus, on March =
20, 2007,=20
Pathex filed a second writ of garnishment On March 30, 2007, Lakota filed =
a motion=20
to dissolve Pathex's first writ of garnishment because the "Final =
Judgment=20
referenced to in the writ has been vacated and is of no further =
force and=20
effect," and therefore, the writ is "improper and null on its =
face."=20
On April 5, 2007, OESC filed =
its "First=20
Amended Petition in Interpleader" and "First Amended Answer to =
Writ of=20
Garnishment." In its answer, OESC stated that it was indebted to =
ABQ for=20
$58,792.74 on February 16 and that it was indebted to ABQ for =
$67,329.36=20
on March 21. OESC stated that, after it was served with the =
February 16=20
and March 21 writs, ABQ informed it that a portion of the =
$58,792.74 and=20
$67,329.36 sums was attributable to Lakota's interest. The answer =
further=20
stated that OESC and Pathex had entered into an agreement whereby =
OESC=20
could pay ABQ amounts attributable to non-Lakota interests, and,=20
therefore, the amounts currently owed by OESC to ABQ were =
$30,387.16 and=20
$33,758.75. OESC contested whether it was a proper party to the=20
garnishment because "there is no bona fide dispute between Lakota =
and ABQ=20
over title to the funds." Pursuant to Rule 43 of the Texas Rules =
of Civil=20
Procedure, On April 5, 2007, Pathex =
responded to=20
Lakota's motion to dissolve the writs. Pathex noted that the trial =
court's=20
modified judgment added the following language only: In addition, the jury awarded =
Pathex=20
$13,362.00 found in answer to question 6(2) and representing the =
salvage=20
value associated with the Hinrichs 13-12b well. Over Pathex's =
objection,=20
the Court found that this amount was included in the $366,728.00 =
and=20
ordered Pathex to make an election between the two. . . . Pathex =
elected=20
the greater number. Thus, Pathex argued that "[t]he =
'Modified=20
Judgment' in no way changes the award of principal damages, =
attorney's=20
fees or post-judgment interest to Pathex and against Lakota, =
although it=20
did reapportion the taxation of court costs." On April 9, 2007, Pathex =
responded to=20
OESC's answer and interpleader, stating that it did not oppose the =
interpleader but that it reserved certain rights. At the April 9, 2007 hearing, =
the trial=20
court considered Lakota's motion to dissolve Pathex's first writ =
of=20
garnishment. Lakota argued that the "B" case was not before the =
trial=20
court at the time of the hearing. Lakota argued that the first =
garnishment=20
was void because the trial court had modified its judgment and =
that the=20
proceeding could not continue because ABQ had not been served and =
was not=20
present at the hearing. Pathex argued that Lakota has a =
"limited=20
power-of-attorney/agency agreement with . . . ABQ, whereby ABQ =
markets=20
Lakota's natural gas." OESC stated that its contract is with ABQ. =
After=20
the hearing, the trial court orally denied Lakota's motion to =
dissolve=20
Pathex's writ of garnishment. The trial court's written order =
granted=20
OESC's petition for interpleader, ordered OESC to tender =
$51,113.91 into=20
the trial court's registry--which reflected the net amount held by =
OESC of=20
$64,145.91 less $13,032 in attorney's fees--and ordered that any =
claims=20
against OESC were discharged and dismissed with =
prejudice. After the trial court rendered =
its order,=20
Lakota filed its answer to OESC's petition for interpleader on =
April 12,=20
2007. Lakota argued that OESC was not entitled to interpleader =
because "it=20
has failed to establish that it is or may be exposed to double or =
multiple=20
liability with respect to the funds held by it on behalf of =
[ABQ]." Lakota=20
further argued that OESC admitted in its answer that there was no =
bona=20
fide dispute between Lakota and ABQ over title to the funds, and=20
therefore, interpleader of the funds was not justified.
The trial=20
court's order states that "this case shall continue on the merits =
between=20
Pathex, Lakota and ABQ to determine their respective rights to the =
funds."=20
The trial court's statement indicates that the order is =
interlocutory, as=20
it does not finally dispose of all parties and claims to the =
interpleaded=20
funds. See K & S Interests, Inc. v. Texas Am. =
Bank/Dallas,=20
749 S.W.2d 887, 889-91 (Tex. App.--Dallas 1988, writ denied) =
(holding=20
order granting interpleader is interlocutory and not final); =
see also=20
Lloyd v. Abraham, Watkins, Nichols, Sorrels, Matthews & =
Friend,=20
No. 14-07-00667-CV, 2008 WL 1991773, at *1 (Tex. App.--Houston =
[14th=20
Dist.] May 8, 2008, no pet.) (mem. op.) (holding that an order =
granting an=20
interpleader is not an interlocutory order made appealable by =
statute). No=20
statute expressly permits an interlocutory appeal of orders =
granting=20
interpleader. We note=20
that additional garnishment proceedings have been asserted between =
the=20
same parties. Two judgments against Lakota were rendered in =
Lakota=20
Resources, Inc. v. Pathex Petroleum, Inc. and ABQ Energy Group, =
Ltd.,=20
cause numbers 2002-31310-E and 2002-31310-F (164th Dist. Ct., =
Harris,=20
County Tex.). Lakota appealed those judgments in appellate cause =
numbers=20
01-08-01990-CV and 01-08-00200-CV. On April 21, 2008, Lakota filed =
an=20
"Unopposed Motion to Set Aside Judgments And Remand" in this Court =
because=20
Pathex, ABQ, and Lakota had reached a settlement. In relevant =
part, their=20
settlement agreement states: The funds=20
captured in Cause Nos. 2002-31310-A,-B . . . and currently =
deposited in=20
the registry of the Court pursuant to the Court's orders dated =
April 9,=20
2007 and September 10, 2007, shall remain on deposit with the =
registry=20
until further order of the Court. Pathex and Lakota agree not =
to take=20
any steps to release or receive such amounts until issuance of a =
mandate=20
or other final resolution of the Parties' appeal of the main case =
pending=20
in the First court of Appeals, Case No. 01-07-00491-CV, =
and=20
notwithstanding the result of Lakota's appeals of the interpleader =
orders,=20
except to the limited extent that the result of the appeals of the =
interpleader orders impacts the attorneys' fees awarded to OneOK =
Energy=20
Services Company, L.P. therein. The settlement agreement =
demonstrates=20
that the only dispute as to the interpleaded funds is who is =
responsible=20
for paying OESC's attorney's fees. When the trial court rendered =
its April=20
9, 2007 order, the trial court had not determined who would =
ultimately pay=20
OESC's attorney's fees. Rather, the order merely permits OESC to =
tender=20
$51,113.91 into the trial court's registry, which reflects the net =
amount=20
held by OESC of $64,145.91 less OESC's attorney's fees of =
$13,032.00. When=20
the case resumes, the trial court could award a portion of the =
funds to=20
Pathex so that Lakota does not ultimately pay OESC's attorney's =
fees.=20
We conclude that the order =
being appealed=20
from is interlocutory and that no statute allows for an =
interlocutory=20
appeal in this instance. Accordingly, we lack jurisdiction over =
these=20
appeals.
We dismiss the appeals for lack =
of=20
jurisdiction. All pending motions are overruled as =
moot.
Evelyn V. Keyes Justice Panel consists of Chief Justice =
Radack=20
and Justices Keyes and Alcala. 1. The underlying=20
judgment is pending appeal in Lakota Resources, Inc., David =
Wilstein=20
and Leonard Wilstein, Individually and as Trustee v. Pathex =
Petroleum,=20
Inc. and Dernick Resources, Inc., No. 2002-31310 (164th Dist. =
Ct.,=20
Harris, County, Tex.) (appellate cause number 01-07-00491-CV).=20
2. Cause number 2002-31310-A.=20
3. Cause number 2002-31310-B.=20
4. Pathex alleged that ABQ Energy Group =
"acts as the=20
marketing agent on behalf of various working interest owners for =
the sale=20
of such owners' natural gas, including Lakota." Pathex further =
alleged=20
that "ONEOK owes or holds funds payable to ABQ, which acts as =
agent for,=20
and holds nominal title to funds that are truly and beneficially =
owned by,=20
Lakota."=20
5. See Tex. R. Civ. P. 43 =
(providing,=20
"Persons having claims against the plaintiff may be joined as =
defendants=20
and required to interplead when their claims are such that the =
plaintiff=20
is or may be exposed to double or multiple liability").=20
6. On September 12, 2007, Pathex filed a =
non-suit of=20
its claims against ABQ in the "B" case.=20