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Click here for the full text of this decision FACTS:In 1987, Agua Frio Ranch leased 23,000 acres of ranch land to B.P. McKinney for bentonite mining. The lease was eventually assigned to Texas Bentonite. Under the lease terms, Agua Frio was to be paid a flat rate per ton of bentonite, to be paid within 10 days of Texas Bentonite’s own receipt of payment. The lease also required Texas Bentonite to maintain up-to-date records and make those records available to the ranch. The ranch requested an audit of Texas Bentonite’s records in 2000. At the audit, Carl McWherter provided Agua Frio with a hand-generated spreadsheet based on numbers provided by Ronnie Henzie. A second and third meeting were necessary to complete the audit, as many of the records were either not produced, or were found to have been generated after the request of the audit, rather than over the years during the course of the lease. At one of these meetings, McWherter asserted that Texas Bentonite had not been paid for some of the bentonite it had sold, and so could not have paid Agua Frio the royalties on those resources. McWherter also said that some of the bentonite was sold to Jerry Bakke, and the payment Bakke made was recorded as payment for a debt Bakke owed Texas Bentonite, rather than income subject to royalty payment. Agua Frio requested more documents, but these were not produced, either. Agua Frio sued McWherter and two John Doe defendants. The ranch lodged a breach-of-contract claim against Texas Bentonite; fraud, breach of fiduciary duties, negligence per se, gross negligence and willful misconduct claims against Texas Bentonite and McWherter; an aiding and abetting claim against the John Does; a civil conspiracy claim against all of the defendants; and a fraudulent concealment claim against all of the defendants. Texas Bentonite and McWherter filed separate answers. Agua Frio filed for partial summary judgment against Texas Bentonite, but not against McWherter, asking the trial court to find that Texas Bentonite breached the lease and that Agua Frio was entitled to cancel the lease. In its response, Texas Bentonite placed most of the blame for any possible breach on McWherter, indicating that it was investigating its own claims against him. Though McWherter had filed his original answer pro se, an attorney appeared for him and filed a response to Agua Frio’s motion for partial summary judgment. McWherter later filed an amended answer. He asserted that there was a fact issue over whether the lease had been breached by the withholding of documents, as asserted by Texas Bentonite in its summary judgment response. The trial court granted the motion for partial summary judgment and severed the claims against Texas Bentonite. Agua Frio then non-suited all of the defendants on the remaining claims. McWherter filed a motion for new trial, which was denied. He then filed a notice of appeal. HOLDING:Dismissed. Noting that McWherter was not a party to the summary judgment ruling, the court notes that McWherter fails to demonstrate how his interests were prejudiced by the summary judgment solely against Texas Bentonite. Though Texas Bentonite blamed McWherter for the breach of the lease, the trial court’s judgment did not assign liability to McWherter for the breach. The court observes that Texas Bentonite has since filed cross-claims against McWherter, but the trial court’s summary judgment did not find McWherter liable to either Texas Bentonite or Agua Frio. OPINION:Chew, J.; McClure, Chew and Rivera, JJ.

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