NO. 07-07-0321-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 30, 2009

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BURNETT RANCHES, LTD., et al. and

TEXAS CHRISTIAN UNIVERSITY,

Appellants

v.

CANO PETROLEUM, INC., et al.,

                                                                                                 Appellees

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FROM THE 100^th DISTRICT COURT OF CARSON COUNTY;

NO. 9840; HON. DAVID M. MCCOY, PRESIDING

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On Motion for Rehearing

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Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

          Pending before this court is the motion for rehearing filed by Burnett Ranches, Ltd., and Texas Christian University (Burnett). Through it, they assert two allegations. The first involves whether they addressed the summary judgment ground wherein Cano Petroleum, Inc., asserted that since the purported contractual breach was non-remedial, it could not provide basis to terminate the lease. The second encompasses whether they addressed each objection upon which the trial court could have excluded their summary judgment evidence. We overrule the motion for the following reasons.

          Regarding the evidentiary matter, we note that the cause has been remanded to the trial court for further proceedings. Given that the judge who granted the summary judgment no longer presides over the 100^th Judicial District of Texas, his successor will have the opportunity to address the matters anew. Manon v. Solis, 142 S.W.3d 380, 386 (Tex. App.–Houston [14^th Dist.] 2004, pet. denied). Thus, we need not deal with them.

          Regarding the contractual matter, the summary judgment ground we alluded to can be read as not implicating Burnett’s purported requirement to provide Cano notice and an opportunity to cure before terminating the lease. To reiterate, the lease provision invoked by Burnett to end the contract stated that:

It is further agreed that failure on part of [the lessee] . . . strictly to keep and

observe the terms, covenants, conditions, and requirements, or any one of

them, on its part to be kept, shall entitle party of the first part or his assigns

at his option, at the time of such breach, or at any time thereafter, to terminate this contract and re-enter upon said premises without notice of any kind. Provided, however, that before advantage is taken of any such breach that notice thereof shall be served on party of second part or its agent in charge and reasonable time allowed within which to correct the conditions of

          which complaint is made.

To defeat Burnett’s effort to terminate, Cano asserted numerous grounds in its motion for summary judgment. Through one, it stated that a “one-time event, such as a fire, is not a remediable event and does not support termination under the terms of the lease.” Rather, [s]uch event would support, if anything a claim for damages.” We interpret this as Cano arguing that irrespective of whether notice and opportunity to cure was afforded, the right to terminate due to a breach does not encompass circumstances like those at bar. Implicit in that argument is the proposition that the clause allegedly applies only to defaults which are susceptible to being cured. If they are not of that ilk, then termination is unavailable, or so the argument would go. And, that particular argument was not addressed by Burnett in its appellate brief.

          Consequently, we overrule the motion for rehearing.

                                                                           Brian Quinn

                                                                          Chief Justice

Campbell, J., concurs.