Exxon Mobil Corporation v. Trade Exploration Corp., Bryan C. Wagner, and Duer Wagner, III ( 2020 )

Appeal Dismissed and Memorandum Opinion filed December 8, 2020.
In The
Fourteenth Court of Appeals
NO. 14-19-00091-CV
EXXON MOBIL CORPORATION, Appellant
V.
TRADE EXPLORATION CORP., BRYAN C. WAGNER, AND DUER
WAGNER, III, Appellees
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Cause No. 2009-60726
MEMORANDUM OPINION
Appellant Exxon Mobil Corporation (“Exxon”) sued Trade Exploration
Corporation, Bryan C. Wagner, and Duer Wagner, III (collectively, the
“Wagners”), asserting claims in connection with Exxon’s settlement of two
lawsuits. The parties proceeded to trial and the jury found in favor of Exxon.
Exxon moved the trial court to enter judgment on the verdict and the Wagners filed
a motion for judgment notwithstanding the verdict.
The trial court signed two orders with respect to the parties’ motions: the
first order granted in part the Wagners’ motion and reduced Exxon’s requested
damages from approximately $71 million to $28 million. The second order was a
modified version of the Wagners’ proposed final judgment, which the trial court
titled an “Interlocutory Judgment”.
Exxon appealed and asserts that the trial court erred by granting in part the
Wagners’ motion for judgment notwithstanding the verdict. The Wagners filed a
cross-appeal and contend, amongst other issues, that this court lacks jurisdiction
over the appeal because the trial court did not sign a final judgment. For the
reasons below, we dismiss the appeal for lack of jurisdiction.
BACKGROUND
Exxon and the Wagners executed a purchase and sale agreement in 1994,
through which the Wagners acquired from Exxon certain oil and gas interests in
Louisiana. As a part of this transaction, the Wagners agreed to “release, defend,
indemnify, and hold [Exxon] harmless from and against all damages, losses,
expenses . . . civil fines, penalties, and other costs and liabilities as a result of
claims, demands, and causes of action[.]”
Twelve years later, Exxon was sued in three separate actions in Louisiana
state court: M.J. Farms, LTD v. Exxon Mobil Corp., et al., Agri-South Group
L.L.C. v. Exxon Mobil Corp., et al., and Avahoula Resources, L.L.C. v. Exxon
Mobil Corp., et al.1 The plaintiffs in these cases alleged environmental damage to
the land conveyed from Exxon to the Wagners and sought restoration and
remediation of the property. The M.J. Farms action settled for $59 million, $57.5
million of which was paid by Exxon. Agri-South settled for $14.11 million and
1
All three suits were filed in the seventh judicial district court of Catahoula Parish,
Louisiana.
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Avahoula settled for no cost. In all three cases, Exxon requested defense and
indemnification from the Wagners, which the Wagners declined to provide.
In September 2009, Exxon sued the Wagners in the underlying proceeding,
seeking indemnification under the parties’ purchase and sale agreement for the
M.J. Farms and Agri-South settlements. To assist their defense, the Wagners
moved to compel the production of certain documents pertinent to Exxon’s defense
and settlement in the M.J. Farms action. Exxon resisted the motion to compel by
invoking the attorney-client privilege. The trial court determined that Exxon
waived the attorney-client privilege via offensive use and ordered the production of
specific documents. Exxon filed a petition for writ of mandamus in this court,
which we conditionally granted. See In re Exxon Mobil Corp., 389 S.W.3d 577
(Tex. App.—Houston [14th Dist.] 2012, orig. proceeding [mand. denied]).
In March 2016, the parties announced ready for trial. At that time, another
defendant, James Finley, announced that he had reached a settlement with Exxon.
Exxon then non-suited its claims against Finley.
Exxon and the Wagners proceeded to trial and, after the close of evidence,
the jury was asked whether the M.J. Farms and Agri-South settlements were “made
in good faith and reasonable and prudent under the circumstances?” The jury
responded “yes” for both settlements. Exxon filed a “Motion for Judgment on the
Jury Verdict” and asked the trial court to award it damages for the full amounts it
paid for the M.J. Farms and Agri-South settlements: $57.5 million and $14.11
million, respectively. The Wagners filed a motion for judgment notwithstanding
the verdict (the “JNOV motion”). The trial court held a hearing on the motions on
May 23, 2016.
After the hearing, Exxon filed a proposed final judgment and the Wagners
filed a supplemental brief in support of their JNOV motion. The Wagners filed a
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second supplemental brief in January 2018. The trial court held a second hearing
on the Wagners’ motion on January 12, 2018.
On November 19, 2018, the Wagners filed with the trial court a letter
supplementing their post-trial motion briefing, which included a proposed final
judgment. The Wagners filed a second proposed final judgment on December 31,
2018.
The trial court signed two judgment-related orders on December 31, 2018.2
The first order granted in part the Wagners’ JNOV motion and “disregard[ed] the
jury verdict on the M.J. Farms settlement but only to the extent it exceeds $14.11
million.” The second order made the following modifications to the Wagners’ first
proposed final judgment:
• The Wagners’ order was entitled “Proposed Final Judgment”; the trial
court modified the title to read “Interlocutory Judgment”.
• The trial court awarded Exxon $14.11 million for the M.J. Farms and
Agri-South settlements, for a total of $28.22 million.
• The trial court struck through the paragraphs addressing prejudgment
interest calculations and the offsets for the Finley settlement. The trial
court inserted language instructing the parties “to recalculate the
prejudgment interest amounts based upon the actual damages amounts
used [in] this interlocutory judgment and to furnish such recalculated
figures for inclusion in a final judgment.”
• The trial court struck through the following sentences: “The Court
orders execution to issue for the Final Judgment. The court further
orders that all other relief not expressly granted herein is denied. This
judgment finally disposes of all claims and parties and is appealable.”
2
Judge William Burke, who presided over the underlying proceedings and signed these
orders, did not run for re-election in 2018. December 31, 2018 was his last day in office.
4
On January 30, 2019, Exxon filed a notice of appeal. The Wagners filed a cross-
notice of appeal two weeks later.
ANALYSIS
We begin with the parties’ jurisdictional arguments, which dispose of the
appeal in this case. These arguments focus on the finality of the trial court’s
December 31, 2018 order entitled “Interlocutory Judgment”. The Wagners assert
that this order does not constitute a final judgment and therefore the appeal should
be dismissed for lack of jurisdiction. In response, Exxon contends that the order is
a final judgment that properly disposes of all claims and parties in the underlying
proceeding.
I. Standard of Review and Governing Law
We consider de novo the legal question of whether we have jurisdiction over
an appeal. CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011); Nunu v. Risk,
567 S.W.3d 462, 465 (Tex. App.—Houston [14th Dist.] 2019, pet. denied).
Appellate courts generally have jurisdiction only with respect to final judgments
unless the appeal is authorized by statute. See Lehmann v. Har-Con Corp., 39
S.W.3d 191, 195 (Tex. 2001); Fleming & Assocs., L.L.P. v. Kirklin, 479 S.W.3d
458, 460 (Tex. App.—Houston [14th Dist.] 2015, pet. denied).
When a judgment lacks clarity, answering the question of finality can prove
difficult. We begin by reiterating the basic principles that govern our analysis. As
the supreme court has stated, a judgment is final “‘if and only if either it actually
disposes of all claims and parties then before the court, regardless of its language,
or it states with unmistakable clarity that it is a final judgment as to all claims and
all parties.’” In re Vaishangi, Inc., 442 S.W.3d 256, 259 (Tex. 2014) (orig.
proceeding) (per curiam) (quoting Bison Bldg. Materials, Ltd. v. Aldridge, 422
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S.W.3d 582, 585 (Tex. 2012)).
Layered upon this foundation is a presumption of finality that applies where,
as here, the judgment in question was signed after a conventional trial on the
merits. See N. E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897-98 (Tex.
1966); see also Vaughn v. Drennon, 324 S.W.3d 560, 562-63 (Tex. 2010) (per
curiam); Moritz v. Preiss, 121 S.W.3d 715, 718-19 (Tex. 2003). Commonly
referred to as the “Aldridge presumption”, this principle provides that:
When a judgment, not intrinsically interlocutory in character, is
rendered and entered in a case regularly set for a conventional trial on
the merits, no order for a separate trial of issues having been entered
pursuant to [our procedural rules], it will be presumed for all purposes
that the Court intended to, and did, dispose of all parties legally before
it and of all issues made by the pleadings between such parties.
Aldridge, 400 S.W.2d at 897-98. Under the Aldridge presumption, a judgment
need not address every party and every claim to be a final judgment for purposes of
appeal. Vaughn, 324 S.W.3d at 563.
But the supreme court “does not disagree” with the notion that the Aldridge
presumption “should not be rigidly applied to make judgments final contrary to the
litigants’ reasonable expectations.” John v. Marshall Health Servs., Inc., 58
S.W.3d 738, 740 (Tex. 2001) (per curiam); see also Butler v. Amegy Bank, N.A.,
No. 14-15-00410-CV, 2016 WL 3574685, at *4 (Tex. App.—Houston [14th Dist.]
June 30, 2016, no pet.) (mem. op.). Therefore, the Aldridge presumption is
rebuttable and applies only in the absence of a contrary showing in the record.
Aldridge, 400 S.W.2d at 898; see also In re R.R.K., 590 S.W.3d 535, 543 (Tex.
2019) (where the order following trial was “not conclusive of finality”, the
supreme court “examine[d] the record to determine the trial court’s intent”). “If
there is any doubt as to the judgment’s finality, then ‘[f]inality must be resolved by
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a determination of the intention of the court [as] gathered from the language of the
decree and the record as a whole, aided occasionally by the conduct of the
parties.’” Vaughn, 324 S.W.3d at 563 (quoting Lehmann, 39 S.W.3d at 203); see
also Butler, 2016 WL 3574685, at *5 (applying Vaughn’s principles to determine
if judgment was final).
II. Application
Here, the trial court’s December 31, 2018 “Interlocutory Judgment” is not
conclusive regarding finality — instead, the trial court took great pains to remove
all indicia of finality. Therefore, we examine the language of the order and the
record as a whole to determine whether the trial court intended the order to be a
final judgment. See Vaughn, 324 S.W.3d at 563.
As stated above, the trial court’s “Interlocutory Judgment” is a modified
version of the Wagners’ first proposed final judgment that contains the following
changes: (1) the order is retitled “Interlocutory Judgment”; (2) the order’s finality
language is struck out; (3) the paragraphs addressing prejudgment interest
calculations and offsets for the Finley settlement are struck out; and (4) the parties
are instructed to “recalculate the prejudgment interest amount . . . for inclusion in a
final judgment.”
These modifications clearly show that the trial court did not intend the
“Interlocutory Judgment” to serve as a final judgment in the underlying
proceeding. The trial court removed all finality language, both in the title and the
body of the order. See Bacon Tomsons, Ltd. v. Chrisjo Energy, Inc., No. 01-15-
00305-CV, 2016 WL 4217254, at *10-11 (Tex. App.—Houston [1st Dist.] Aug. 9,
2016, no pet.) (mem. op.) (order rebutted Aldridge presumption of finality because
it did “not contain any language demonstrating that it was intended to be final”);
Butler, 2016 WL 3574685, at *5 (judgment rebutted Aldridge presumption because
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it was titled “partial” and “partial” was handwritten). The trial court also expressly
left unresolved remaining issues regarding prejudgment interest and instructed the
parties to recalculate these amounts “for inclusion in a final judgment.” See In re
B.W.S., No. 05-15-01207-CV, 2016 WL 7163866, at *2 (Tex. App.—Dallas Nov.
28, 2016, no pet.) (mem. op.) (“When a document . . . instructs the parties to
prepare an appropriate final order, this is evidence that the trial court did not intend
the document to be a final judgment.”); Butler, 2016 WL 3574685, at *5
(concluding the record rebutted the Aldridge presumption, this court noted that the
trial court instructed the parties that it would “await[] instructions from counsel
pursuant to the agreement of the parties” and would “not memorialize that
judgment until such time as counsel brings it to the Court’s attention”); and In re
M.G.F., No. 04-15-00591-CV, 2016 WL 519650, at *2 (Tex. App.—San Antonio
Feb. 10, 2016, no pet.) (mem. op.) (Aldridge presumption rebutted because the
order “expressly reserve[d]” certain issues “for consideration at a later date”).
These modifications rebut the application of the Aldridge presumption.
The same can be said for the parties’ conduct herein. At the January 12,
2018 hearing on the Wagners’ JNOV motion, counsel for both parties indicated
that they anticipated post-judgment briefing. Specifically, counsel for the Wagners
stated:
I do want to bring two matters to the Court’s attention and one is
directly related to our Motion for Judgment Notwithstanding Verdict.
The other is in a matter that is probably premature in the sense that we
have not filed a motion for new trial yet. But I do want to alert the
Court to matters that are, at least, baffling me and will be the subject
of a motion for new trial in this matter.
And counsel for Exxon stated:
And so I’m happy to reserve the rest of that [argument], because I
think it really is a motion for new trial type of argument, when I can
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have the time to gather up all that to provide to you.
Despite these statements, neither party filed a motion for new trial after the trial
court signed the December 31, 2018 “Interlocutory Judgment”. See Tex. R. Civ. P.
329b(a) (motion for new trial must be filed within 30 days of the trial court’s
signing of the judgment). This absence counsels against the order’s finality. See
In re B.W.S., 2016 WL 7163866, at *2 (concluding that the parties “did not treat
the Memorandum as a final judgment”, the court noted that “Mother did not file
post-judgment motions after the court sent the Memorandum”). Considered in
conjunction with the language of the “Interlocutory Judgment”, we conclude that
the record shows the trial court did not intend the “Interlocutory Judgment” to
constitute a final judgment. Therefore, the order and the record rebut the
application of the Aldridge presumption. See Vaughn, 324 S.W.3d at 563. To hold
otherwise would render a result contrary to litigants’ reasonable expectations. See
John, 58 S.W.3d at 740.
Arguing that the “Interlocutory Judgment” nonetheless is final despite its
strike-outs and interlineations, Exxon asserts that the judgment “disposes of all
claims and parties.” We disagree. Because the “Interlocutory Judgment”
expressly reserved certain issues regarding the calculation of prejudgment interest,
it did not dispose of all claims in the underlying proceeding.
A judgment that finally disposes of all remaining claims and parties, based
on the record in the case, is final. See Lehmann, 39 S.W.3d at 200. But a final
judgment must also be certain so that it may be enforced by writ of execution. In
re Blankenhagen, 513 S.W.3d 97, 100 (Tex. App.—Houston [14th Dist.] 2016,
orig. proceeding [mand. denied]); see also H.E. Butt Grocery Co. v. Bay, Inc., 808
S.W.2d 678, 680 (Tex. App.—Corpus Christi 1991, writ denied). Because
ministerial officers must be able to carry the judgment into execution without
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ascertaining additional facts, a judgment awarding an unascertainable amount
cannot be final. In re Blankenhagen, 513 S.W.3d at 100.
Failing to specify the amount of prejudgment interest does not necessarily
make a judgment uncertain or indefinite. See Ziemian v. TX Arlington Oaks
Apartments, Ltd., 233 S.W.3d 548, 553 (Tex. App.—Dallas 2007, pet. struck);
Olympia Marble & Granite v. Mayes, 17 S.W.3d 437, 441 (Tex. App.—Houston
[1st Dist.] 2000, no pet.). But if the record reveals facts that call into question the
date on or manner in which prejudgment interest should accrue, then the
calculation of prejudgment interest is not a simple ministerial act. See Olympia
Marble & Granite, 17 S.W.3d at 442; see also, e.g., Harris Cty. Toll Rd. Auth. v.
Sw. Bell Tel., L.P., 263 S.W.3d 48, 55-56 (Tex. App.—Houston [1st Dist.] 2006),
aff’d, 282 S.W.3d 59 (Tex. 2009) (because appellate court could not ascertain the
date on which prejudgment interest would begin accruing, the order did not
constitute a final judgment); Zamarripa v. Sifuentes, 929 S.W.2d 655, 657 (Tex.
App.—San Antonio 1996, no writ) (same). In such a case, the judgment is not
final. See, e.g., Harris Cty. Toll Rd. Auth., 263 S.W.3d at 56-57; Olympia Marble
& Granite, 17 S.W.3d at 442-43.
Here, because the record reveals issues that call into question the amount of
prejudgment interest, this figure’s calculation is not a mere ministerial task. The
parties put forth competing prejudgment interest calculations in their proposed
final judgments, as set forth below:
Exxon’s Proposed Final Judgment (filed June 6, 2016)
• For actual damages awarded with respect to the M.J. Farms settlement,
prejudgment interest would be calculated at the rate of 5% from October
7, 2011 (the date on which the Wagners were provided a copy of the
unredacted settlement agreement) until September 25, 2012 (one day
before the parties agreed to an effective standstill of this lawsuit while a
mandamus was proceeding).
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The prejudgment interest would resume at the rate of 5% from March 22,
2014 (the date on which the Texas Supreme Court denied rehearing in the
mandamus) through May 1, 2016.
The amount of this interest would be reduced by $1.5 million, which
represents the dollar amount Exxon received in settlement proceeds from
Finley prior to trial.
• For actual damages awarded with respect to the Agri-South settlement,
prejudgment interest would be calculated at the rate of 5% from
November 25, 2014 until May 1, 2016.
The Wagners’ First Proposed Final Judgment (filed December 11, 2018)
• This final judgment proposed that Exxon take nothing on its claim related
to the M.J. Farms settlement.
• For actual damages awarded with respect to the Agri-South settlement,
prejudgment interest would be calculated at the rate of 5% from
November 25, 2014 until May 16, 2016 (the date upon which Finley’s
initial settlement payment was due to Exxon).
This prejudgment interest amount would be reduced by $1.5 million,
representing the dollar amount Exxon received in settlement proceeds
from Finley prior to trial.
Prejudgment interest would resume from March 17, 2016 through final
judgment at the rate of 5%.
The Wagners’ Second Proposed Final Judgment (filed December 31, 2018)
• For actual damages awarded with respect to the M.J. Farms settlement,
prejudgment interest would be calculated at the rate of 5% from October
7, 2011 (the date on which the Wagners were provided a copy of the
unredacted settlement agreement) until September 25, 2012 (one day
before the parties agreed to an effective standstill of this lawsuit while a
mandamus was proceeding).
The prejudgment interest would resume at the rate of 5% from March 22,
2014 (the date on which the Texas Supreme Court denied rehearing in the
mandamus) through March 16, 2016 (the date upon which Finley’s initial
settlement payment was due to Exxon).
This prejudgment interest amount would be reduced by $1.5 million,
representing the dollar amount Exxon received in settlement proceeds
from Finley prior to trial.
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Prejudgment interest would resume at the rate of 5% from March 17,
2016 through final judgment.
• For actual damages awarded with respect to the Agri-South settlement,
prejudgment interest would be calculated at the rate of 5% from
November 25, 2014 until final judgment.
The trial court’s December 31, 2018 “Interlocutory Judgment” was based on the
Wagners’ first proposed final judgment. The trial court struck out all paragraphs
addressing prejudgment interest and credit for the Finley settlement, and instructed
the parties to “recalculate the prejudgment interest amounts based upon the actual
damages amounts used in this interlocutory judgment and to furnish such
recalculated figures for inclusion in the final judgment.”
The trial court’s instructions regarding the prejudgment interest amounts,
considered in conjunction with the parties’ proposed calculations, refute any
suggestion that a prejudgment interest calculation would be a simple, ministerial
act. Although the parties agree with respect to some portions of the calculations,
significant differences remain. While both parties’ prejudgment interest
calculations take into account the $1.5 million in settlement proceeds Exxon
received from Finley prior to trial, the instructions in the trial court’s “Interlocutory
Judgment” make no mention of a settlement credit. Instead, the trial court only
instructs the parties to furnish prejudgment interest amounts. Since a portion of the
Finley settlement was subsumed within the parties’ proposed interest calculations,
it is unclear whether the trial court intended to deny the settlement credit altogether
or have the parties include it in their forthcoming interest calculations.
Moreover, outstanding issues regarding the Finley settlement further counsel
against the finality of the trial court’s “Interlocutory Judgment”. In their cross-
appellants’ brief, the Wagners argue that (assuming we concluded the trial court’s
“Interlocutory Judgment” constituted a final judgment) the trial court erred by
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failing to apply a settlement credit for Finley’s settlement with Exxon. In
response, Exxon agreed that “[a] settlement credit is appropriate” and asked that
we “reform the judgment to include the [] settlement credit sought by the
Wagners.”
In the trial court, the parties disagreed regarding the value of the settlement
credit: Exxon sought to reduce the portion of the settlement credit representing
future payments to present value, whereas the Wagners sought credit for the full
amount of Finley’s settlement. On appeal, Exxon abandoned its present-value
argument and agreed to a settlement credit representing the full amount Finley
agreed to pay Exxon, stating that the “difference is not worth litigating further.”
But these arguments and any abandonment thereof are more appropriately
developed (and ultimately resolved) in the trial court rather than on appeal, as
necessary for their inclusion in a final judgment.
Because of these uncertainties, the trial court’s “Interlocutory Judgment”
does not dispose of all claims in the underlying proceeding and does not constitute
a final judgment. See Lehmann, 39 S.W.3d at 200.
III. Dismissal
Finally, Exxon asserts that, if we conclude finality is lacking, “the proper
course would be to abate temporarily, not to dismiss the appeal entirely.” See Tex.
R. App. P. 27.2 (“[t]he appellate court may allow an appealed order that is not final
to be modified so as to be made final”).
Addressing abatement in Lehmann, the supreme court stated that, “[i]f the
appellate court is uncertain about the intent of the order, it can abate the appeal to
permit clarification by the trial court.” 39 S.W.3d at 206; see also Lewin v.
Mission Bend No. 5 Homeowners Ass’n, Inc., No. 14-16-00026-CV, 2017 WL
13
2959653, at *2 (Tex. App.—Houston [14th Dist.] July 11, 2017, no pet.) (mem.
op.) (“If the finality of the judgment is uncertain, an appellate court may abate the
appeal to permit clarification.”). Here, as discussed above, we are not uncertain
about the intent of the trial court’s “Interlocutory Judgment”. After examining the
language of the “Interlocutory Judgment” and the record as whole, we conclude the
trial court did not intend the order to serve as a final judgment in the underlying
proceeding. See Vaughn, 324 S.W.3d at 563. Nor does the order dispose of all
claims in the underlying proceeding. Therefore, it is not necessary to abate the
appeal to permit the trial court to clarify its intent. See Lehmann, 39 S.W.3d at
206. The proper course of action is to dismiss the appeal for lack of jurisdiction.
See id. at 195; Fleming & Assocs., L.L.P., 479 S.W.3d at 460.
CONCLUSION
We dismiss the appeal for lack of jurisdiction.
/s/ Meagan Hassan
Justice
Panel consists of Justices Christopher, Jewell, and Hassan (Jewell, J., dissents
without opinion).
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