CMS Oil & Gas Company v. Belva Sue Neal Brusenhan Trustee of the Belva Sue Neal Brusenhan Management Trust and Jessie Francis Neal--Appeal from 112th District Court of Upton County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

CMS OIL & GAS COMPANY,

Appellant,

v.

BELVA SUE NEAL BRUSENHAN, TRUSTEE OF THE BELVA SUE BRUSENHAN MANAGEMENT TRUST, AND JESSIE FRANCES NEAL ,

Appellees.

'

'

'

'

'

No. 08-02-00067-CV

Appeal from the

112th Judicial District Court

of Upton County, Texas

(TC# 00-12-U3692-ANC)

O P I N I O N

Pending before the Court is the motion of Appellees, Belva Sue Neal Brusenhan, Trustee of the Brusenhan Management Trust, and Jessie Frances Neal, to dismiss this appeal pursuant to Tex. R. App. P. 42.3, which states:

Under the following circumstances, on any party=s motion--or on its own initiative after giving ten days= notice to all parties--the appellate court may dismiss the appeal or affirm the appealed judgment or order. Dismissal or affirmance may occur if the appeal is subject to dismissal:

(a) for want of jurisdiction;

(b) for want of prosecution; or

(c) because the appellant has failed to comply with a requirement of these rules, a court order, or a notice from the clerk requiring a response or other action within a specified time.

Tex. R. App. P. 42.3.

Appelleescontend the judgment from which this appeal is taken is interlocutory and non-appealable because it does not fully and finally adjudicate all issues and claims asserted by them. We agree.

In their Original Petition, Appellees sought declaratory relief as to the meaning and effect of Section 22 of an oil and gas lease executed by Appellees, as lessors, and Appellant, CMS Oil and Gas Company, as lessees. The Original Petition also included a breach of contract cause of action and requested an accounting and attorney=s fees. In their motions for summary judgment, Appellant and Appellees address only the legal construction of Section 22 of the oil and gas lease. The parties later stipulated to attorney=s fees, which is reflected in the trial court=s judgment.

Based on the record before this Court, it appears that two causes of action, breach of contract and request for an accounting, were not addressed in the motions for summary judgment, were not severed, and thus, were not finally disposed of for purposes of appeal. Thus, the judgment before this Court is interlocutory and non-appealable. The Court has considered this cause on Appellees= motion and concludes the motion should be granted and the appeal should be dismissed. We therefore dismiss the appeal pursuant to Tex. R. App. P. 42.3(a).

December 5, 2002

__________________________________________

STEPHEN F. PRESLAR, Chief Justice (Ret.)

Before Panel No. 5

McClure, Chew, JJ., and Preslar, C.J. (Ret.)

Preslar, C.J. (Ret.) sitting by assignment

(Do Not Publish)