Affirmed and Majority and Concurring Opinions filed August 14, 2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00042-CV

CLAY EXPLORATION, INC., Appellant

V.

SANTA ROSA OPERATING, LLC, Appellee

On Appeal from the 12th District Court

Grimes County, Texas

Trial Court Cause No. 28262-A

MAJORITY OPINION

In this case, a receiver appointed under section 64.091 of the Civil Practice 

and Remedies Code executed an oil and gas lease to appellant Clay Exploration, 

Inc. Clay appeals the trial court’s order denying its motion to confirm the 

receiver’s lease and granting appellee Santa Rosa Operating, L.L.C.’s motion to set 

aside the lease. Clay’s primary argument on appeal is that the trial court erred in 

ruling that the receiver lacked authority to execute the lease to Clay. Based on the 
limited authority granted in the order appointing the receiver, we hold the trial 

court correctly ruled the receiver lacked authority to lease to Clay. We therefore 

affirm the trial court’s order setting aside the lease. 

BACKGROUND

In 1999, Marathon Oil Company filed a petition for appointment of a 

receiver to lease mineral interests in five tracts of land. See Tex. Civ. Prac. & 

Rem. Code Ann. § 64.091(b) (West Supp. 2014). These tracts included 102 acres

in Grimes County that Frederick Kastan and Gustav Heye purchased in 1889.1 The 

record shows that Kastan later left Texas and moved back to Berlin, Germany. 

Marathon requested a receiver “to take charge of and execute an oil, gas, and 

mineral lease, or leases” on behalf of the defendant owners of the mineral interests, 

including Fredrick Kastan or his unknown heirs.2 Marathon alleged that it had 

made a “thorough and diligent but unsuccessful effort” to locate the heirs. 

Marathon also alleged that it owned a leasehold estate in the relevant tracts and 

would be unable to drill, develop, pool, unitize, produce, and operate the mineral 

interests if a receiver was not appointed. 

The trial court appointed Charles Ketchum to serve as receiver. The trial 

court ordered that the receiver

shall have the authority and is hereby authorized and directed to 

deliver a mineral lease, or leases, with pooling authority as provided 

1 The surname “Kastan” is also spelled “Kaston” or “Kasten” in certain court documents. 

Because affidavits from the alleged heirs indicate that the correct spelling is Kastan, we use that 

spelling here.

2 The petition also requested that the receivership cover the mineral interests of 

defendants Susie Feggins Henderson, Shirley June Sunday, David W. Acreman, Ollie Acreman, 

Trudy Acreman Oliver, Ray Acreman, Willie James Creeks, Brenda P. Debose, Wilson E. 

Debose, Jr., Debbie Ann Gaston, Kevin Hargrove, Betty Jean Hill, and Dorothy Marie Marks, or, 

if any of those persons are deceased, their unknown heirs. Regarding the 102-acre tract at issue 

here, the only interested defendant was Frederick Kastan or his unknown heirs.

2

 
by law, covering all the Defendants’ entire mineral interests, in, under 

and that may be produced from the respective tracts of land described 

on Exhibit “A,” unto Marathon Oil Company, which can be 

accomplished by executing a separate oil and gas lease to Marathon 

Oil Company covering each of the five (5) tracts of land described on 

Exhibit “A” or by executing an oil and gas lease covering one or more 

of said tracts; the Receiver is further authorized and shall have the 

power to enter into any unitization agreement which has been duly 

authorized by the Railroad Commission of Texas and to do all acts 

and have all powers provided for Receivers by the Statutes of the 

State of Texas.

(Emphasis added). The trial court further ordered that

if the Receiver is successful in negotiating the sale, negotiation, 

execution and delivery of a mineral lease or leases covering 

Defendants’ entire mineral interest, the Receiver shall report the terms 

of such to this Court for confirmation or disallowance; that any 

money consideration negotiated by the Receiver for the execution of 

leases shall be paid to the Clerk of this Court and placed in the 

Registry of the Court, and after applying such money consideration to 

any costs that may have accrued, or may hereafter accrue, in this 

cause, the balance and any future payments shall be retained by the 

Clerk of this Court in the Registry of this Court . . . .

(Emphasis added). There is no evidence in the record that Marathon ever drilled a 

well on the tracts.3

In 2011, both Clay and Santa Rosa sought to lease the mineral interests in 

the 102 acres. Tayland Resources, LLC obtained leases from some of the nonKastan holders of mineral interests in the property using funds provided by Clay.

Santa Rosa filed a petition with a new cause number in November 2011, asking the 

court to appoint a receiver to lease the minerals. Tayland Resources intervened 

3 At trial, Clay’s lawyer represented to the court that Ketchum had executed a lease with 

Marathon in 1999, which expired by its own terms three to five years later because no well was 

drilled. Our record on appeal, however, does not contain a copy of that lease, or an order from 

the trial court confirming it.

3

 
and filed its own petition for appointment of a receiver; it later assigned its 

interests in the leases to Clay. This new receivership action, to the extent it 

remains live, is not at issue in this appeal.

Clay also contacted the original receiver, Ketchum, who executed an oil and 

gas lease in favor of Clay in January 2012. According to Clay, Ketchum also 

“accepted the bonus money on behalf of the Unknown Kast[a]n Heirs,” and the 

“money was deposited with the District Clerk as directed by the existing 

receivership.” Ketchum died later that month. 

Santa Rosa filed a petition in intervention in the original Marathon

receivership action in April 2012. Santa Rosa alleged that Ketchum was 

authorized to enter into an oil and gas lease only with Marathon. Santa Rosa also 

alleged that it had found the unknown Kastan heirs and obtained leases from 

them.

4

 Santa Rosa moved to set aside the receivership and to invalidate the 

Ketchum–Clay oil and gas lease. Santa Rosa contended the lease was invalid 

because (1) Clay “could not have obtained or proved its entitlement to take the oil 

and gas lease from the Receiver since its counsel was informed that the Kast[a]n 

heirs were no longer unknown,” and (2) the appointment order “provided that the 

Receiver was to only make an oil and gas lease with Marathon.” 

The next day, Clay filed a motion in the Marathon action to confirm its lease

from Ketchum. Clay alleged that, although the “initial lease was to be negotiated 

with Marathon . . . the [appointment] order did not prohibit, and in fact provided 

for the receiver to enter into future leases for the benefit and protection of the 

Unknown Kast[a]n Heirs.” 

4 Santa Rosa attached to its petition a Memorandum of Lease from purported Kastan 

heirs, signed by Irit Kroner Cohen and Tamar Kroner Cohen. Santa Rosa also introduced leases 

signed by Klaus Kastan, Edith Kastan, Claudia V. Stuckard, Thomas Alexander Gutman, and 

Shoshana Kroner. 

4

 
After holding an evidentiary hearing, the trial court issued an order denying 

Clay’s motion to confirm the lease, granting Santa Rosa’s motion in part, and 

setting aside the Ketchum–Clay lease. The order did not specify the ground on 

which the court set aside the lease, and it stated that the court was not resolving the 

issues of dissolving the receivership or distributing funds on deposit to potential 

heirs.5 Clay filed a motion to sever “the issue of the confirmation of the lease,” 

and the trial court ordered the severance of all “claims related to the validity of 

and/or confirmation of the Receiver’s oil and gas lease to Clay Exploration,”

resulting in a final, appealable order. This appeal followed.

ANALYSIS

On appeal, Clay raises three issues: (1) the trial court erroneously ruled that 

the receiver lacked authority to execute the lease to Clay, and therefore erred in 

setting aside the receiver’s lease; (2) the trial court abused its discretion in refusing 

to confirm the receiver’s lease because—having erroneously ruled that the receiver 

lacked authority—the trial court never reached the question whether the lease was 

entered into through mistake, inadvertence, or improvidence; and (3) the trial court 

abused its discretion in refusing to confirm the receiver’s lease because there was 

no evidence that the receiver’s lease was entered into through mistake, 

inadvertence, or improvidence. On the first issue, we hold that the receiver’s 

authority to execute and deliver a lease extended only to Marathon, and therefore 

the trial court did not err in setting aside the receiver’s lease to Clay. Because the 

remaining issues regarding the trial court’s refusal to confirm the Ketchum–Clay 

lease assume that the receiver had authority, we do not reach those issues.

5 The court subsequently appointed a substitute receiver subject to any previous orders 

issued in the cause. 

5

 
I. Standard of review

Statutory construction and the legal effect of a court order are questions of 

law that we determine de novo based on the plain language of the statute or order. 

See F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007); 

Shanks v. Treadway, 110 S.W.3d 444, 447–49 (Tex. 2003). When a trial court’s 

judgment or order does not identify the grounds on which the trial court relied, we 

will affirm the judgment on any grounds presented that fully support the 

complained-of ruling. See City of Mont Belvieu v. Enter. Prods. Operating, LP, 

222 S.W.3d 515, 518 (Tex. App.—Houston [14th Dist.] 2007, no pet.); Britton v. 

Tex. Dep’t of Crim. Justice, 95 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 

2002, no pet.).

II. The trial court did not abuse its discretion in setting the Ketchum–Clay

lease aside because, although the receivership continued, the receiver 

was not authorized to execute or deliver a lease to Clay.

Because the trial court’s written order does not identify the grounds on 

which it relied in denying Clay’s motion to confirm and granting Santa Rosa’s 

motion to set aside the Ketchum–Clay lease, we may affirm based on either of the 

two grounds Santa Rosa presented to the trial court. See, e.g., Carr v. Brasher, 776 

S.W.2d 567, 569 (Tex. 1989). The parties’ briefs address both grounds, and either 

ground, if correct, would support the trial court’s ruling.

Taking its cue from certain oral comments by the trial court at the hearing, 

Clay begins by contending that the court based its ruling on an incorrect 

interpretation that a receivership under section 64.091 of the Civil Practice and 

Remedies Code does not stay in effect beyond the expiration of the initial lease.6 

6 The trial court commented that it relied on the entire record in ruling on the motions, but 

that one of its beliefs was that the receivership did not stay in effect after the expiration of the 

original lease except for the purpose of collecting and distributing funds. Although it is 

6

 
Clay further contends that because the receivership was “in effect,” the receiver 

was necessarily empowered to execute successive leases once the initial lease 

expired. In Clay’s view, therefore, the trial court had discretion only to confirm 

the lease, or to invalidate it solely for mistake, inadvertence, or improvidence. 

Although we agree with Clay that Santa Rosa failed to show the receivership 

was no longer in effect at the time of the Ketchum–Clay lease, we disagree with 

Clay’s interpretation of the authority granted to the receiver as a result of 

Marathon’s petition. We hold the 1999 appointment order vested the receiver with 

the authority to execute and deliver a lease or leases to Marathon—subject to 

confirmation or disallowance—but did not confer the authority to execute and 

deliver any number of leases, successive or otherwise, to any party at the receiver’s 

discretion. Because this ground was presented to the trial court and fully supports 

its ruling, we affirm its order setting aside the receiver’s successive lease to Clay. 

A. Santa Rosa failed to show the receivership was no longer in effect 

at the time Ketchum signed the lease with Clay.

In its motion to set aside the Ketchum–Clay lease, Santa Rosa first 

contended the lease was invalid because the receiver was no longer entitled to 

deliver an oil and gas lease given that “the Kast[a]n heirs were no longer 

unknown.” We begin our analysis by addressing this ground because if Santa Rosa 

were correct that the receivership was no longer in effect, it would be unnecessary 

to address the scope of receiver Ketchum’s authority. We conclude that Santa 

Rosa is incorrect, however, and hold that a claim of heirship communicated outside 

the judicial process did not alone invalidate either the receivership or the lease.

Section 64.091 gives trial courts discretion to “appoint a receiver for the 

understandable Clay would choose to address this ground first, the court’s oral comments do not 

change its written order. Richardson v. Johnson & Higgins of Tex., Inc., 905 S.W.2d 9, 11–12 

(Tex. App.—Houston [1st Dist.] 1995, writ denied).

7

 
mineral interest . . . owned by an absent defendant” in certain actions, including an 

action “brought by a person claiming or owning . . . an undivided leasehold interest 

under a mineral lease of land in [Texas] and that has one or more defendants who 

have, claim, or own an undivided mineral interest in the same property.” Tex. Civ. 

Prac. & Rem. Code Ann. § 64.091(b)(1). The plaintiff in such an action must 

allege and prove that he “has made a diligent but unsuccessful effort to locate the 

defendant” and “will suffer substantial damage or injury unless the receiver is 

appointed.” Id. §64.091(c).

The statute requires the receiver, “[a]s ordered by the court,” to 

“immediately: (1) execute and deliver to a lessee or successive lessees mineral 

leases on the outstanding undivided mineral interests; (2) execute and deliver to a 

lessee or successive lessees an assignment of the outstanding undivided leasehold 

interest; and (3) enter into a unitization agreement authorized by the Railroad 

Commission of Texas.” Id. §64.091(f)(1–3). Once created, the receivership 

“continues as long as the defendant or his heirs, assigns, or personal 

representatives fail to appear in court in person or by agent or attorney to claim the 

defendant’s interest.” Id. §64.091(e). 

Neither party disputes that the trial court’s 1999 order in the Marathon 

action created a receivership for the undivided mineral interests in the 102 acres 

owned by the unknown Kastan heirs. Although the statute does not explicitly 

address how or when a receivership is dissolved, subsection (e) makes clear that it 

continues at least until the heirs “appear in court . . . to claim [their] interest.” Id.

Regardless of whether Clay or the receiver had notice outside the judicial 

process that individuals were purporting to be the unknown Kastan heirs, the

record contains no evidence that the alleged heirs had made an appearance in court 

to claim their interest before Ketchum executed the Clay lease in January 2012. 

8
Santa Rosa did allege in its April petition in intervention that it had located the 

unknown Kastan heirs. We need not decide whether that filing amounted to an 

appearance in court by the Kastan heirs to claim their interest, however, because 

nothing in the statute indicates that such an appearance would dissolve the 

receivership retroactively. Accordingly, we hold Santa Rosa failed to show the 

receivership was no longer in effect when Ketchum executed the Clay lease, and 

we turn to the question whether the receivership order authorized Ketchum to do 

so.

7

 

B. The 1999 appointment order limits the receiver’s authority to 

executing and delivering leases to Marathon.

The second ground raised in Santa Rosa’s motion to set aside the Ketchum–

Clay lease was that the appointment order “provided that the Receiver was to only 

make an oil and gas lease with Marathon.” In general, “[a] receiver has only that 

authority conferred by the Court’s order appointing him.” Ex Parte Hodges, 625 

S.W.2d 304, 306 (Tex. 1981).

8

 We give effect to an order “in light of the literal 

language used if that language is unambiguous.” Reiss v. Reiss, 118 S.W.3d 439, 

441 (Tex. 2003) (internal quotation marks omitted); Haworth v. Haworth, 795 

S.W.2d 296, 298 (Tex. App.—Houston [14th Dist.] 1990, no writ). Judicial orders 

and judgments, “like other written instruments, are to be construed as a whole 

toward the end of harmonizing and giving effect to all the court has written.” 

7 In so holding, we need not and do not address whether the receivership is still in effect 

today or whether it was in effect at the time of the trial court’s order setting aside the lease. Nor 

do we address whether the receivership, if still in effect, should be dissolved—an issue still 

pending before the trial court.

8 See also Baumgarten v. Frost, 186 S.W.2d 982, 987 (Tex. 1945) (“One dealing with a 

receiver is charged with the knowledge of the law that the authority of the receiver is limited to 

that given by the court.”); Kelly v. Kelly, 257 S.W. 992, 997 (Tex. Civ. App.—Dallas 1924) 

(“The order of the court making the appointment properly limits the effect of same, as well as the 

power and authority of the receiver under said appointment, to the possession, care, and control 

of the property pending the litigation.”). 

9

 
Constance v. Constance, 544 S.W.2d 659, 660 (Tex. 1976). 

As permitted by section 64.091, the trial court’s 1999 appointment order

“authorize[s] and direct[s]” the receiver “to deliver a mineral lease, or leases, with 

pooling authority as provided by law, covering all the Defendants’ entire mineral 

interests . . . unto Marathon Oil Company.” (Emphasis added). The order 

provides that this direction “can be accomplished by [1] executing a separate oil 

and gas lease to Marathon Oil Company covering each of the five . . . tracts of land

. . . or [2] by executing an oil and gas lease covering one or more of said tracts.” 

Cf. Tex. Civ. Prac. & Rem. Code Ann. § 64.091(f)(1) (providing that, “[a]s ordered 

by the court,” the receiver shall immediately “execute and deliver to a lessee . . . 

mineral leases on the outstanding undivided mineral interest”). If the receiver 

successfully negotiated, executed, and delivered the lease or leases, the order 

required him to “report the terms of such to this Court for confirmation or 

disallowance.”

The Ketchum–Clay lease, which covers only one of the five original tracts,

does not fall within these authorized categories of leases. To make a valid lease to 

Marathon, the only additional step required by the 1999 appointment order was for 

the court to confirm the lease executed and delivered by the receiver. But nothing 

in the order purports to grant the receiver authority to execute and deliver a mineral 

lease to any party except Marathon. Thus, absent an amendment to the 

appointment order granting the receiver the additional authority to lease to another 

party, the receiver lacks authority to execute and deliver a lease to Clay. Cf. Ex 

Parte Hodges, 625 S.W.2d at 306; Baumgarten, 186 S.W.at 987.

Clay relies on its counsel’s representation that Ketchum entered into a lease 

with Marathon, and casts itself as a “successive lessee” to whom Ketchum was 

authorized to execute and deliver a subsequent lease. But Clay’s focus on 

10
language in subsection (f) of section 64.091 that “the receiver shall immediately” 

execute and deliver a lease or successive lease ignores the immediately preceding

limitation: “[a]s ordered by the court.” Tex. Civ. Prac. & Rem. Code Ann. § 

64.091(f). Aside from the lack of evidence in our record as to the execution, 

delivery, and confirmation of a lease of the Kastan heirs’ interests to Marathon, or 

the expiration of that lease, the 1999 appointment order does not address the 

receiver’s authority to execute or deliver successive leases. 

Clay also contends that because the order further authorizes the receiver “to 

enter into any unitization agreement which has been duly authorized by the 

Railroad Commission of Texas and to do all acts and have all powers provided for 

Receivers by the Statutes of the State of Texas,” the receiver was empowered to 

enter into successive leases. Although the power to enter into successive leases is 

one contemplated by the statute, see id. § 64.091(f)(2), construing “do all acts and 

have all powers provided for Receivers” as providing the maximum authority 

permitted under the statute would render superfluous the rest of that paragraph of 

the trial court’s order—which grants only the power to execute and deliver a single 

lease or set of leases, and only to Marathon. But see Constance, 544 S.W.2d at 660 

(“Judgments, like other written instruments, are to be construed as a whole toward 

the end of harmonizing and giving effect to all the court has written.”); cf. Scott v. 

Sampson, 333 S.W.2d 220, 222 (Tex. Civ. App.—Fort Worth 1960, writ ref’d 

n.r.e.) (holding court did not abuse its discretion under predecessor statute in 

directing receiver to execute lease to particular lessee).

Nor does the trial court’s power to grant such limited discretion to the 

receiver defeat the purpose of the statute, as Clay contends.9 Although we agree 

9 At any rate, even if the 1999 appointment order’s restricted scope of authority did 

frustrate a statutory purpose, it would not follow that the receiver was granted all powers that 

would effectuate that purpose despite the order’s limitations. Cf. Shanks, 110 S.W.3d at 447 

11

 
with Clay that the statutory purpose of mineral receiverships is “to encourage the 

exploration and development of minerals,” Tex. Civ. Prac. & Rem. Code Ann. 

§ 64.091(a), the statute also limits the receiver’s authority to execute and deliver 

leases to the authority “ordered by the court.” Id. § 64.091(f). Thus, the plain 

language of the statute indicates the Legislature’s determination that the 

exploration and development of minerals is served by providing the court with 

discretion regarding whether to grant authority to a receiver, and to what extent. 

See id.; see also id. § 64.091(b) (“a district court may appoint a receiver” 

(emphasis added)).

Because the 1999 appointment order did not grant the receiver authority to 

execute and deliver a lease—successive or otherwise—to any entity except 

Marathon, we hold Ketchum lacked the authority to execute and deliver a lease to 

Clay. We overrule Clay’s first issue.

* * *

Although our concurring colleague agrees with this analysis of Santa Rosa’s 

second ground regarding the scope of the receiver’s authority, she contends that we 

should not have addressed Santa Rosa’s first ground regarding the existence of the 

receivership at the time of the Ketchum–Clay lease, arguing that our discussion of 

that ground in Part II.A. above is advisory and violates the principle of judicial 

restraint. We disagree. 

“The distinctive feature of an advisory opinion is that it decides an abstract 

question of law without binding the parties.” Tex. Ass’n of Bus v. Tex. Air Control 

(“[W]e must interpret the decree to determine not what the trial court should have done but, if 

possible, what the trial court actually did.”); Bailey v. Amaya Clinic, Inc., 402 S.W.3d 355, 372 

(Tex. App.—Houston [14th Dist.] 2013, no pet.) (“The language in the Order is unambiguous; 

therefore, this court must interpret the Order as having the effect required by the Order’s plain 

language, even if this effect is contrary to the result required under applicable law.”). 

12

 
Bd., 852 S.W.2d 440, 444 (Tex. 1993). Our holding regarding the receivership’s 

existence at the time of the lease is far from abstract or non-binding. As noted 

above, the non-existence of the receivership was raised below as a ground for 

setting aside the lease, the trial court commented on it at the hearing, and the 

parties have briefed it here. If correct, it would provide an independently sufficient 

basis for the court’s order setting aside the lease—indeed, it would allow us to 

avoid addressing the scope of the receiver’s authority. 

Moreover, addressing the existence of the receivership promotes judicial 

economy because it affects matters that remain pending before the trial court. We 

acknowledge the rule providing that our opinions must be “as brief as practicable 

but . . . address[] every issue raised and necessary to final disposition of the 

appeal,” Tex. R. App. P. 47.1, as well as the general principle of restraint that a 

court faced with both constitutional and non-constitutional grounds for deciding a 

case should rest its decision on the non-constitutional ground, deciding no more 

than necessary.10 But the Supreme Court of Texas, this Court, and many others 

have recognized that these considerations may be trumped in non-constitutional 

cases by the principle of judicial economy, which gives appellate courts discretion 

to address other possible grounds for the decision under review. E.g., Edinburgh 

Hosp. Auth. v. Trevino, 941 S.W.2d 76, 81 (Tex. 1997) (addressing issue not 

essential to disposition of appeal to provide trial court with guidance); Cincinnati 

Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996) (“the appellate court may 

consider other grounds that the movant preserved for review and trial court did not 

rule on in the interest of judicial economy”); Wichita County, Tex. v. Hart, 917 

S.W.2d 779, 780 (Tex. 1996); Lone Star Gas Co. v. R.R. Comm’n, 767 S.W.2d 

709, 711 (Tex. 1989) (per curiam) (observing that although rules “do not require or 

10 VanDevender v. Woods, 222 S.W.3d 430, 432–33 (Tex. 2007).

13

 
contemplate advisory opinions on issues not essential to the final disposition of a 

case,” courts must also give “full consideration of all issues raised to move the case 

as far as possible toward final disposition”).

11

Here, addressing the existence of the receivership at the time of the 

Ketchum–Clay lease will provide guidance to the trial court and the parties in 

resolving multiple live disputes. For example, the existence of the receivership is 

relevant to the pending request to dissolve the receivership and distribute funds, as 

well as to Santa Rosa’s allegation that Clay is liable for exemplary damages 

because it clouded Santa Rosa’s title by taking a lease from Ketchum knowing that 

the Kastan heirs’ existence made that lease invalid.

12 Because we can decide now 

whether the receivership still existed in January 2012 (a decision that had the 

potential to resolve this appeal fully), we see no point in condemning the parties to 

waste their time and money—and the trial court and (if appealed) this Court to 

waste scarce public resources—on arguing and considering that question again. 

We have therefore exercised our discretion to decide the question now in the 

interest of judicial economy.

11 See also, e.g., Houston Chronicle Pub. Co. v. McMaster, 598 S.W.2d 864, 867 (Tex. 

Crim. App. 1980); Shafighi v. Tex. Farmers Ins. Co., No. 14-12-00082-CV, 2013 WL 1803609, 

at *5 (Tex. App.—Houston [14th Dist.] Apr. 30, 2013, no pet.) (mem. op.); In re I.E.F., 345 

S.W.3d 637, 639 (Tex. App.—San Antonio 2011, orig. proceeding); Dallas/Fort Worth Int’l 

Airport Bd. v. Ass’n of Taxicab Operators, 335 S.W.3d 361, 366 (Tex. App.—Dallas 2010, no 

pet.); Diamond Offshore Drilling v. Advanced Indus. & Marine Servs., Inc., No. 14-00-00087-

CV, 2002 WL 1411068, at *5 & n.18 (Tex. App.—Houston [14th Dist.] June 27, 2002, no pet.) 

(not designated for publication); Boales v. Brighton Builders, Inc., 29 S.W.3d 159, 165 (Tex. 

App.—Houston [14th Dist.] 2000, pet. denied).

12 The concurring opinion expresses concern that Tayland Resources filed a separate 

petition for a new receivership that could be impacted by our decision even though Tayland 

Resources is not participating as a party to this appeal. As noted above, however, Tayland 

Resources assigned its leases to Clay, who is a party here. In addition, it is not clear whether 

Clay is pursuing Tayland Resources’ petition given that a substitute receiver has been appointed 

in the original Marathon receivership action.

14

 
CONCLUSION

For these reasons, we affirm the trial court’s order setting aside the 

Ketchum–Clay lease.

/s/ J. Brett Busby

Justice

Panel consists of Justices McCally, Busby, and Donovan (McCally, J., 

Concurring).

15