Reversed and Rendered and Opinion filed December 23, 2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00743-CV

GENESIS PRODUCING COMPANY, L.P., Appellant

V.

SMITH BIG OIL CORPORATION, TODD M. SMITH AND JAMES A.

WHITSON, JR., Appellees

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Cause No. 2012-30652

O P I N I O N

In this dispute over an assignment of an interest in an oil and gas lease, 

Genesis Producing Company, L.P., appeals the trial court’s judgment granting

Smith Big Oil Corporation and Todd M. Smith’s summary judgment motion, 

denying Genesis’s summary judgment motion, and striking Genesis’s amended 

petitions. Concluding that Genesis nonsuited its claims before judgment was 

rendered on the competing summary judgment motions, we reverse and render.
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FACTUAL AND PROCEDURAL BACKGROUND

Genesis is in the business of oil and gas exploration and the purchase and 

sale of oil, gas, and mineral leases in Texas and other states. J. Morgan Smith 

(Morgan) owns a majority limited partnership interest in Genesis and his company,

J. Morgan Smith, Inc., is its general partner. Todd M. Smith (Todd) is Morgan’s 

son and Smith Big Oil is Todd’s company. Unless otherwise indicated, we will 

collectively refer to Smith Big Oil and Todd as “SBO.” 

According to Genesis’s petition, Genesis’s business has declined over time 

and its assets consist of a few remaining oil, gas, and mineral leases. As business 

continued to worsen, Genesis owed substantial sums to creditors. Consequently, 

Genesis entered into several transactions, including a purported assignment to 

Smith Big Oil of its working interest in an oil and gas lease in Louisiana that is the 

subject of this lawsuit. The lease contains one producing oil and gas well, which 

Genesis asserts is Morgan’s principal source of personal income. Genesis claims 

that the assignment was made “solely for the purpose of protecting the income and 

revenues received on the Lease for the benefit of J. Morgan Smith and protecting 

same from the claims of certain creditors” of Genesis. 

Genesis alleges that the assignment of the lease is invalid because (1) no 

consideration was paid for it, (2) the assignment was made through error, mistake,

or fraud, and (3) the assignment was improperly witnessed and notarized. Genesis 

also alleges that it entered into this transaction unwittingly and on the advice of 

one of its officers. Although Genesis demanded that SBO reassign the lease to 

Genesis, SBO refused. Genesis also demanded that James A. Whitson, Jr., the 

operator of the well, continue making payments of proceeds from the well to 

Genesis. In response, SBO’s counsel instructed Whitson to continue making all 

payments to Smith Big Oil.
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In 2012, Genesis sued Smith Big Oil, Todd, and Whitson, asserting causes 

of action for conversion, breach of contract, and declaratory judgment in 

connection with Genesis’s assignment of the lease to Smith Big Oil, and requesting

a temporary restraining order and temporary injunction. Shortly after the petition 

was filed, the trial court signed an order reflecting that SBO agreed to a temporary 

injunction requiring Whitson to pay certain revenues from the well into the registry 

of the court during the pendency of the case. EOG Resources, Inc., one of 

Genesis’s creditors, later intervened in the lawsuit, seeking to recover damages for 

fraudulent transfer against SBO.

In January 2013, Genesis moved for summary judgment. SBO responded 

and also moved for traditional and no-evidence summary judgment against 

Genesis. The trial court heard the parties’ arguments on their cross-motions on 

March 25, 2013. On April 11, Genesis filed a first amended petition adding 

additional causes of action and a new defendant; SBO objected and moved to strike

the first amended petition. On April 16, Genesis filed a second amended petition, 

as well as a motion to extend the pleading deadline. Genesis also moved to strike 

EOG’s intervention, but the trial court denied the motion to strike on April 19 by 

written order.

On April 22, at 3:44 p.m., the trial court sent the following email to counsel 

for both parties:

On Friday the court denied Plaintiff’s Motion to Strike the 

Intervention of EOG Resources, Inc.

Today, the court is denying [Genesis’s] Motion for Summary 

Judgment and granting [SBO’s] Motion for Summary Judgment as to 

Breach of Contract and Conversion of the Lease that is the subject of 

this lawsuit. The court is denying [SBO’s] Motion for Summary 

Judgment as to proceeds of the lease that are deposited into the 

registry of the court.
4

Counsel for SBO immediately requested a hearing seeking clarification as to 

“whether any claims remain for trial” on April 24. 

On the morning of April 23, the trial court held a telephonic hearing with the 

parties which apparently was not recorded. At 12:32 p.m. that same day, Genesis 

filed a notice of nonsuit of all of its causes of action. Later that afternoon, SBO 

filed and served a proposed “Final Order on Plaintiff’s Claims.”

On April 24, the trial court signed the Final Order on Plaintiff’s Claims. In 

the two-page order, the trial court expressly dismissed with prejudice Genesis’s 

claims for breach of contract and conversion, as well as Genesis’s “fraud claim, 

styled as a request for a declaratory judgment.” The trial court also specified that it 

was dismissing with prejudice Genesis’s other requests for declaratory judgment 

concerning failure of consideration, error or mistake, and improper witnessing and 

notarization, and expressly confirmed that the court was dismissing all of 

Genesis’s claims against Smith Big Oil, Todd, and Whitson. Finally, the trial court 

denied Genesis leave to amend its original petition or file its first or second 

amended petitions, and struck Genesis’s first and second amended petitions.

On July 19, 2013, the trial court signed a final judgment based on its

dismissal of Genesis’s claims and a subsequent settlement agreement between 

EOG and SBO. In the final judgment, the trial court dismissed EOG’s claims 

without prejudice, dissolved the temporary injunction, ordered the release of the 

funds in the court’s registry to a trust account for the benefit of Smith Big Oil, and 

ordered Whitson to pay a specified amount of all future oil and gas revenues from 

the lease to the trust.1 Genesis filed a motion for new trial that was overruled by 

operation of law, and this appeal followed.

 

1 Neither Whitson nor EOG are parties to this appeal.
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ANALYSIS

In five issues, Genesis complains that the trial court erred in granting 

summary judgment in favor of Smith Big Oil and Todd on Genesis’s claims, 

denying Genesis’s summary judgment motion, denying Genesis’s motion for leave 

to extend the pleading deadline, and striking Genesis’s amended petitions. In its 

second issue, Genesis contends that the trial court erred in rendering judgment after 

Genesis nonsuited its claims. Because we conclude that this complaint is 

dispositive, we need not address Genesis’s other issues.

A plaintiff may take a nonsuit at any time before it has introduced all of its 

evidence other than rebuttal evidence. Tex. R. Civ. P. 162. The nonsuit renders the

merits of the plaintiff’s claims moot. Travelers Ins. Co. v. Joachim, 315 S.W.3d 

860, 862 (Tex. 2010). The right to take a nonsuit is unqualified and absolute as

long as the defendant has not made a claim for affirmative relief. Villafani v. Trejo, 

251 S.W.3d 466, 469 (Tex. 2008). But a decision on the merits, including a 

summary judgment in the defendant’s favor, is not vitiated. See Hyundai Motor 

Co. v. Alvarado, 892 S.W.2d 853, 855 (Tex. 1995) (per curiam) (“Once a judge 

announces a decision that adjudicates a claim, that claim is no longer subject to the 

plaintiff’s right to nonsuit.”).

Rendition of judgment is “the judicial act by which the court settles and 

declares the decision of the law upon the matters at issue.” Comet Aluminum Co. v. 

Dibrell, 450 S.W.2d 56, 58 (Tex. 1970). Generally, a judgment is rendered when 

the decision is officially announced orally in open court, by written memorandum 

filed with the clerk, or otherwise announced publicly. Garza v. Tex. Alcoholic 

Beverage Comm’n, 89 S.W.3d 1, 6 (Tex. 2002); Dibrell, 450 S.W.2d at 59.

Rendition is distinguishable from the entry of judgment, which is a purely 

ministerial act by which the judgment is made of record and preserved. Ex 
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parte Gnesoulis, 525 S.W.2d 205, 209 (Tex. Civ. App.—Houston [14th Dist.] 1975, 

orig. proceeding).

Although neither party has directed us to a case involving a trial judge’s

purported ruling communicated by email to the parties, courts have held that a trial 

court’s letter may constitute a rendition of judgment if it is in sufficient detail to 

state the court’s decision on all the matters at issue and is filed with the clerk. See, 

e.g., Greene v. State, 324 S.W.3d 276, 282 (Tex. App.—Austin 2010, no pet.); 

Mixon v. Moye, 860 S.W.2d 209, 210 (Tex. App.—Texarkana 1993, no writ); Ex 

parte Gnesoulis, 525 S.W.2d at 209. Because the rendition of judgment is a present 

act that decides the issues upon which the ruling is made, the words used by the 

trial court must clearly indicate its intent to render judgment at that time, rather 

than in the future. See S & A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857–

58 (Tex. 1995) (per curiam); Greene, 324 S.W.3d at 283. A trial court’s letter to 

the parties is not a rendition of judgment if it merely indicates the court’s intention 

to render judgment in a certain way and sets out guidelines by which counsel are to

prepare a judgment. Mixon, 860 S.W.2d at 210; Ex parte Gnesoulis, 525 S.W.2d at 

209.

Genesis argues that because it filed its April 23 nonsuit before the trial court 

rendered judgment in its April 24 written order, the trial court’s April 22 email is 

ineffective as a ruling on the merits of Genesis’s claims. In response, SBO argues

that the trial court’s email was intended to dismiss all of Genesis’s claims. In 

support of its contention, SBO relies on Alvarado and Curry v. Bank of America

for the proposition that a party cannot nonsuit claims after they have been 

adjudicated. See Alvarado, 892 S.W.2d at 855; Curry v. Bank of Am., N.A., 232 

S.W.3d 345, 354 (Tex. App.—Dallas 2007, pet. denied) (citing Alvarado and 

explaining that a party who has had his claims adjudicated unsuccessfully cannot 
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later nonsuit his claims to avoid the judgment). But SBO’s argument assumes that 

the trial court’s email effectively rendered judgment on Genesis’s claims. Neither 

Alvarado nor Curry involved a dispute concerning whether the trial court

adjudicated the plaintiffs’ claims prior to nonsuit. See Alvarado, 892 S.W.2d at 

855; Curry, 232 S.W.3d at 354.

At first glance, the trial judge’s email purports to deny Genesis’s summary 

judgment motion and grant SBO’s motion for summary judgment at least as to 

Genesis’s breach of contract and conversion claims. But, there is not any indication 

in the record that the email was ever filed with the clerk or otherwise announced 

publicly. In contrast, the trial court’s ruling denying Genesis’s motion to strike 

EOG’s intervention—also mentioned in the email—was memorialized in a written 

order that was signed and filed with the clerk. Additionally, counsel for SBO

immediately requested a telephonic hearing seeking “clarification” concerning the 

email before the start of trial.2The written “Final Order on Plaintiff’s Claims,”

signed after Genesis filed its nonsuit, is markedly different from the trial court’s

earlier email, including numerous additional rulings on matters not previously 

mentioned in the email and expressly dismissing Genesis’s declaratory judgment 

claims. 

Based on the trial court’s failure to file the email or otherwise announce its 

ruling publicly, as well as the differences between the email and the court’s 

subsequent written ruling, we conclude that the email was not a rendition of 

 

2

SBO represents that during the telephone conference, the trial court clarified that it was 

dismissing all of Genesis’s claims, including its declaratory judgment claims, and instructed 

SBO’s counsel to memorialize its rulings in a “Final Order on Plaintiff’s Claims” which the trial 

court ultimately signed. However, there is no record of an oral pronouncement at the telephonic 

hearing showing that the trial court rendered judgment at that time. See In re R.A.H., 130 S.W.3d 

68, 69–70 (Tex. 2004) (per curiam) (holding that judgment was rendered when formal decree of 

paternity was signed when no record or evidence of an oral pronouncement at earlier hearing 

existed and the only written memorandum was an unsigned docket sheet).
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judgment. See Garza, 89 S.W.3d at 6; cf. Mixon, 860 S.W.2d at 210 (letter 

consisting of one short paragraph that was not filed with the clerk and was 

followed by a later, far more detailed order was not a rendition of judgment). 

Because the trial court’s April 22 email to the parties was insufficient to effectuate 

a rendition of judgment, Genesis’s April 23 nonsuit mooted all of its claims. 

Consequently, the trial court erred when it subsequently rendered judgment 

dismissing Genesis’s claims with prejudice. We therefore sustain Genesis’s issue 

and reverse and render judgment that Genesis’s claims are dismissed without 

prejudice.

CONCLUSION

We reverse the trial court’s final judgment, signed July 19, 2013, to the 

extent that the judgment dismisses with prejudice Genesis’s claims for breach of 

contract, conversion, and declaratory judgment. In light of Genesis’s nonsuit, we 

render judgment that these claims asserted by Genesis are dismissed without 

prejudice.

/s/ Ken Wise

Justice

Panel consists of Justices Boyce, Busby, and Wise.