NO. 07-00-0225 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L C NOVEM BER 27, 2001

_______________________ H.B. TAYLOR, JR. Appellant
v. BRIGHA M OIL &

GAS, L.P ., BRIGHA M MA NAGEM ENT and VERITAS GEOPHYSICAL, LTD. Appellee

______________________ FROM THE 31 st JUDICIAL DISTRICT COURT OF W HEELER COUNTY; NO. 10341; HON. JUDGE STEVEN R. EM MERT, PRESIDING

______________________ ON ABATEMENT AND REMAND Before QUINN, REAVIS, and JOHNSON, JJ. Pending before the court is an appeal attem pted by H.B. Taylor from what purports to be a sum mary

judgm ent. For the reasons which follow, we ab ate the appeal an d remand the cause for additional proceedings.2 FACTS The ap pe al i nv ol ve s a su i t i ni ti at ed by Br i gh am O i l & G as , L .P ., Br i gh am Lan d Managem entand Veritas Geophysical, Ltd., (collectively referred to as Brigham) against Taylor. Through the petition, Brigham sought, am ong other things, a judgm ent declaring an d enforcing its right to conduct seism ic exploration under an oil and gas lease. In response to the suit, Taylor counterclaimed for affirmative relief. The cause of action he ass erted so un de d i n n eg l i ge nc e. Th at i s, Ta yl or al l eg ed th at Br i gh am “ co mmi tte d ne gli gentacts in reckless disregard of [his] rights . . . .” Thereafter, Brighammoved for sum m aryjudgm ent upon its cl aims and those of Taylor. The grounds purportedly justifying sum m aryjudgm ent were s everal. Furthermore, on Decem ber 15, 1998, the tria l court executed a docum ent ent itled Ord er o n M otio n fo r S um m ary Jud gm ent . Th ere in, it itemized the gro und s fo r su m m ary j udg m ent

ass ert ed b y B righ amin its mot ion and stated that ea ch was “Gran ted.” Ap pro xi m ate ly13 m onths later, Brigham moved to n o nsuit i ts claim for attorneys fees so that the “Cour t’s Order on Motion for Sum mary Judgm ent m ay becom e final and app eala ble

. . . .” That m otion was granted o n January 20, 2000, and in granting it, the trial court

stated that dism issing the claim for fees“thereby [m ade] the Court’s Decem ber 15, 1998 Order on Motion for S umm ary judgm enta final and appeal able ord er.” Lastl y, it is from the J anuary 20, 2000 Order on No nsuit that Taylor appealed. APPLICABLE LAW Itis axiom atic that final summ ary judgm ents m ay undergo imm ediate appellate re vi ew. For such decrees to b e final, however, they m ust m eetvarious cri teria. Of tho se3

criteria, the foremost

is the need for

the rendition of an actual judgm ent. Disc o Machine of Liberal Co. v. Pay

ton , 900 S.W.2d 71, 73 (Tex. App.–Amarillo 1995, no w rit). The latter constitutes the judicial act by w hich the court settles the dispute and "de clares the decision of the law upon the mat

ters at issue." Id. ; Chand ler v. Reder

, 635 S.W.2d 895, 896-97 (T ex. App.- -Am arillo 19 82, no writ); Comet Aluminum Co. v. Dibrell , 450 S.W.2d 56, 59 (T ex. 197 0) ( not ing t hat a j udg m ent

is re nde red w hen thej udg e of fici ally ann oun ceshis decision in his official cap aci ty and for his official guidance the sentence of law pronounced by him

in any ca use). Absent such a declaration there is no final judgm ent. Chandler v. Red er , 635 S.W.2d at 896-97. More im portantly, this requirement is not fulfill ed by sim ply granting a motion for sum mary judgm ent. Disc

o Machine

of Liberal

Co.
v. Payton , 900 S.W.2d at 73; Harper v. Welch em, Inc. , 799 S.W.2d 492, 49 4 ( Te x. App.- - Houston [14th Dist.] 1990, no writ); Chandler v. Reder , 635 S.W.2d at 89 6 -97; accord, Piercev. Benefi

t Trust Lif

e Ins. Co. , 784 S.W.2d 516, 517(Te x. Ap p.- -Am arillo199 0, writ denied) (record initiall y disclosing merely an order granting the m otion for sum m ary judgm ent but not the j udgme nt itself). Application of Law The January 20 th document from which Taylor attem pted toappeal doe s not d eclare the decision of

thelaw upo n th e m attersat i ssu e. I t m ere lypurports to grant a nonsuit and final ize the Order on Mot ion for Sum mary Judgm ent executed 13 m onths earlier on Decem ber 15th. Moreover, the Order on Motion for Sum mary Judgm ent is nothing m ore4

than an indication of the trial court'sdecision vis- a- visthe m otion for sum mary judgm ent. Itdoes not express a specific settlement of rights betwee n the parties. Nor doesit discl ose the spe ci fi c an d f in al re su lt of fi ci al ly con do ne d b y an d r ec og ni ze d u nd erth e l aw. Thus, itis not tantamount to an act pronounci ng a specifi c sentence as requi red by Comet Alumi num . Indeed, it is identical to the orders which thecourts in Harper , Chandler

, and Piercerefused to deemas final judgm ents. In short, we have bef

or e us no j udgme nt as contem plated by the authority cited above. W ithout a judgm ent there was nothing for the trial court to finalize via its January 20 th order involving nonsuit. And, in absence of the rendition of a final judgm ent, we have no jurisdiction over the cause, and dismissal is w arranted. Howe ver, from utm ost caution and to possibly avoid expo sin g the parties to needless ex pense, we opted to forego dismissal and instead follow the procedure expou nded in Pierce v. Benefit Trust Life Ins. Co. Consequently, w

e abate the appeal and rem and the cause to thetrial court. Upon
r emand , the trial court shall give notice to appellate counsel and proceed forthwith t o supplement

the record to show

whether or no t a final judgm ent was rendered. If j udgme nt wasrendered, the rendition of s am e shall be reduced to writing, dated as of the date of rendition, and signed by the trial court; but if j udg m ent

w as n ot r

end ere d, t he cour

t sh all so certify in writing. The trial court shall then cause its written j udgme nt or certification of
n o judgm ent t o be included in a supplemental transcript, certified to by the clerk of the court, and transmitted to the cl erk of this co urt no late r than Decem ber 21, 2001. If5

necess aryto accom modate the trial court's schedule, a request reasonably ex plaining the need for additi onal ti me for the submission shall be file d prior to Dece mber 2 1, 2 001. Upon receipt of the supplem ent, the court will determ ine whether to dism iss the appeal or grant other appropriate relief. It is so Ordered.

Brian Quinn Justice Do not publish.