NO. 07-00-0225-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

NOVEMBER 27, 2001 

_______________________

H.B. TAYLOR, JR.

Appellant

v.

BRIGHAM OIL & GAS, L.P., BRIGHAM MANAGEMENT and

 VERITAS GEOPHYSICAL, LTD.

Appellee

______________________

FROM THE 31st JUDICIAL DISTRICT COURT OF WHEELER COUNTY;

NO. 10341; HON. JUDGE STEVEN R. EMMERT, PRESIDING

______________________

ON ABATEMENT AND REMAND

Before QUINN, REAVIS, and JOHNSON, JJ.

Pending before the court is an appeal attempted by H.B. Taylor from what purports

to be a summary judgment. For the reasons which follow, we abate the appeal and

remand the cause for additional proceedings. 
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FACTS

The appeal involves a suit initiated by Brigham Oil & Gas, L.P., Brigham Land

Management and Veritas Geophysical, Ltd., (collectively referred to as Brigham) against

Taylor. Through the petition, Brigham sought, among other things, a judgment declaring

and enforcing its right to conduct seismic exploration under an oil and gas lease. In

response to the suit, Taylor counterclaimed for affirmative relief. The cause of action he

asserted sounded in negligence. That is, Taylor alleged that Brigham “committed

negligent acts in reckless disregard of [his] rights . . . .” Thereafter, Brigham moved for

summary judgment upon its claims and those of Taylor. The grounds purportedly justifying

summary judgment were several. Furthermore, on December 15, 1998, the trial court

executed a document entitled Order on Motion for Summary Judgment. Therein, it

itemized the grounds for summary judgment asserted by Brigham in its motion and stated

that each was “Granted.” 

Approximately 13 months later, Brigham moved to nonsuit its claim for attorneys

fees so that the “Court’s Order on Motion for Summary Judgment may become final and

appealable . . . .” That motion was granted on January 20, 2000, and in granting it, the

trial court stated that dismissing the claim for fees “thereby [made] the Court’s December

15, 1998 Order on Motion for Summary judgment a final and appealable order.” Lastly,

it is from the January 20, 2000 Order on Nonsuit that Taylor appealed.

 APPLICABLE LAW

It is axiomatic that final summary judgments may undergo immediate appellate

review. For such decrees to be final, however, they must meet various criteria. Of those
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criteria, the foremost is the need for the rendition of an actual judgment. Disco Machine

of Liberal Co. v. Payton, 900 S.W.2d 71, 73 (Tex. App.–Amarillo 1995, no writ). The latter

constitutes the judicial act by which the court settles the dispute and "declares the decision

of the law upon the matters at issue." Id.; Chandler v. Reder, 635 S.W.2d 895, 896-97

(Tex. App.--Amarillo 1982, no writ); Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 59

(Tex. 1970) (noting that a judgment is rendered when the judge officially announces his

decision in his official capacity and for his official guidance the sentence of law

pronounced by him in any cause). Absent such a declaration there is no final judgment.

Chandler v. Reder, 635 S.W.2d at 896-97. More importantly, this requirement is not

fulfilled by simply granting a motion for summary judgment. Disco Machine of Liberal Co.

v. Payton, 900 S.W.2d at 73; Harper v. Welchem, Inc., 799 S.W.2d 492, 494 (Tex. App.--

Houston [14th Dist.] 1990, no writ); Chandler v. Reder, 635 S.W.2d at 896-97; accord,

Pierce v. Benefit Trust Life Ins. Co., 784 S.W.2d 516, 517 (Tex. App.--Amarillo 1990, writ

denied) (record initially disclosing merely an order granting the motion for summary

judgment but not the judgment itself). 

Application of Law

The January 20th document from which Taylor attempted to appeal does not declare

the decision of the law upon the matters at issue. It merely purports to grant a nonsuit and

finalize the Order on Motion for Summary Judgment executed 13 months earlier on

December 15th. Moreover, the Order on Motion for Summary Judgment is nothing more
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than an indication of the trial court's decision vis-a-vis the motion for summary judgment.

It does not express a specific settlement of rights between the parties. Nor does it disclose

the specific and final result officially condoned by and recognized under the law. Thus,

it is not tantamount to an act pronouncing a specific sentence as required by Comet

Aluminum. Indeed, it is identical to the orders which the courts in Harper, Chandler, and

Pierce refused to deem as final judgments. 

In short, we have before us no judgment as contemplated by the authority cited 

above. Without a judgment there was nothing for the trial court to finalize via its January

20th order involving nonsuit. And, in absence of the rendition of a final judgment, we have

no jurisdiction over the cause, and dismissal is warranted. However, from utmost caution

and to possibly avoid exposing the parties to needless expense, we opted to forego

dismissal and instead follow the procedure expounded in Pierce v. Benefit Trust Life Ins.

Co. Consequently, we abate the appeal and remand the cause to the trial court. Upon

remand, the trial court shall give notice to appellate counsel and proceed forthwith to

supplement the record to show whether or not a final judgment was rendered. If judgment

was rendered, the rendition of same shall be reduced to writing, dated as of the date of

rendition, and signed by the trial court; but if judgment was not rendered, the court shall

so certify in writing. The trial court shall then cause its written judgment or certification of

no judgment to be included in a supplemental transcript, certified to by the clerk of the

court, and transmitted to the clerk of this court no later than December 21, 2001. If
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necessary to accommodate the trial court's schedule, a request reasonably explaining the

need for additional time for the submission shall be filed prior to December 21, 2001.

Upon receipt of the supplement, the court will determine whether to dismiss the appeal or

grant other appropriate relief. 

It is so Ordered.

Brian Quinn

 Justice

Do not publish.