NO. 07-01-0086 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L C FEBRUA RY 13, 2002

______________________________ BEACH EX PLORATION, INC., APPELLANT

V. BRADFORD L. MOORE AND McGOW AN & McGOW AN, P.C., APPELLEES

_________________________________ FROM THE 121 stDISTRICT COURT OF TERRY COUNTY; NO. 15,345; HON ORABLEMARV IN MA RSHALL, JUDGE

_______________________________ Before QUINN and REAVIS and JOHNSON, JJ. Beach Exploration, Inc. c hallenges a summ ary judgm ent that it take and reco ver nothing on its ac

tion for da m ages ag ainst B radford L. Moore and McGow an & Mc Gowan, P.C. P resenting two issues, Beach contends the trial court erred in granting Moore and McGowan’sm otio n fo r su m m ary j udg m ent

(1)on t he g rou nd of lim it ations becau se Beach’s claim did not accrue w ithin two years of the filing of its lawsuit and t he discove ry r ule2

applies to toll the ac cr ua l of Be ac h’ s c l ai m, and (2) on the ground of proximate caus ation because genuine issues of m aterial fact existed as towhether or no t the negligent act of Mooreproxim ately caused dam ages incurred by Beach. Because the s umm ary judgm ent is interlocutory and not subjec t to appeal, we mus t dismiss for want of jurisdiction. Thi s Court is obligated to determine, sua sponte , its jurisdiction to hear and consider an appeal. W elch v. McD ougal, 876 S.W.2d 218, 220 (Tex.App.--Am arillo 1994, w rit denied); see also New York Underw riters Ins. Co. v. S anchez, 799 S.W.2d 677, 678 (T ex. 1990). The j urisdiction of this Court is established by various constitutional and statuto ryprovisions. See , e.g. , Tex. Cons t. art. 5, § 6; Tex . Gov’t Code Annota ted § 22.220 (Vernon 1988). As a gener al rul e, an appeal m ay be taken only froma final judgm ent. Lehm ann v. Har-Con Corp., 39 S .W.3d 1 91, 195(Te x. 200 1). Asa re sult , th is Court does not have j urisdiction to review an interlocutory order absent an express

grant of authority. Steeple Oil and Gas Corporation v. A mend, 39 4 S .W .2 d 7 89 , 7 90 (T ex. 1965); see also Tex. Civ. P rac. & Rem . Code Ann. § 51 .014 (Vernon S upp. 200 2). Therefore, before we consider Beach’s issues, we mus t first determ ine if the order granting sum mary

judgm ent signed February 6, 2001, is a final judgm ent. After being engaged by Beach to exam ine the title to a 160-acre tract in T err y County and to render their written title opinion, Moore and McGow an, attorneys, subm itted the ir original titl e opinion dated Decem ber 10, 1986, by which they expressed their opinion as to t he ow ner

shipof t he o il, gas, and m inerals and existing oil, gas, and mineral lea ses.1 Similar to Beach’ s original petiti on. 3

Am ong other things, the attorneys concluded in the title opi nion that Amerada Hess Corporation owned an undivided one-fourth of the oil, ga s, and minerals, and that Beach held oil, gas, and mineral leases covering the rem ainder of the oil, gas, and m inerals under the tract. After making arrangements with Amerada Hess Corporation under a “farm out” agreemen t, Beach drilled and comp leted four oil wells on the property wh ich continued to produce oil, gas, or minerals until 1996, when a third party filed a suit asserting a claim to part of the oil, gas, and m inerals under the tract which interest was not reflected in the Decem ber 10, 1986 title opinion. After entering into a settlement agreemen t with the t hird pa rty claimant, on Septem ber 11, 1998, Beach filed suit against Moore and McGow an to recover

dam ages caused by thefailure of the title opinion to inform Beach of the claim and title of the third party. By paragraph IV of its first am ended original petiti on, 1 Beach alleged: Plaintiff brings this suit as operator of the oil an d gas pro perty described her ein and the working interest owners, purs uant to a Joi nt Ope rating Agreem entbyand betwe en Beach Exploration, Inc., as operator, and Haz el Sims Baldwin, O.J. Barron Estate, Beach Exploration, Inc. , W ill iam N. Beach , Bro wn Royalties, Brock Oil & Gas, C onejos O il Account, J. Firma n Cook, Jr., N oel D. Debnam , Arnold M. Gay nor, Randy Geiselm an, Hu ff ma n Investments, Deirdre J . Johns on, Bentley B. King, McDonald Company, Harry L. Mitchell , D.D. Narrell Family Trust, IshamP. Nelson Trust, J. Norton Company, S. Howard Norton, J. P. Rose , S &M Oil O per atio ns, Har rell Spears, Mary Sw

enson Revo cable Trust, and Val Dee Wil cox, asworking intere st owners. Pursuant to the term s of the Joint Operating Agreem ent,4

Plaintiff has the right, dut

y, a nd a uth orit

y tobrin g th is c laimon behalf of the above nam ed working interest ow ners. The Joint Operating Agreem ent referenced in the pleadings is not included in the record. Bytheir motion for sum mary judgm ent, Moore and M cGowan requ ested that thetrial court: grantSumm ary Judgment in their favor that Plai ntiff, Beach Explorati on, Inc. take nothing . . . . However, the m otion for sum mary judgm ent does not m ention, name, or reference the remaining 24 working interest ow ners. Sim ilarly, Beach’s response to the m otion did not name, reference, or

identify the working interest ow ners or purport to consti tute a response on behalf of

the w orking intere st ow ners. A fter a h earing on January 11, 2001, the trial court s igned the following order:
Order Grant ing Summ ary

Judgme nt On the 11 th day of

January, 2001, cam e on to be heard the Motion for Sum mary Judgm ent o f Def enda nts, Bradford L. Moore (“Moore”) and McGow an & McGowan, P.C. (“McGowan”)

. After reviewing t he Summary Ju dgment evidence , and con sidering the argument of counsel the Court f inds that the Moti on for Summ ary Judgment of Defenda nts Moore and McGow an should be granted; IT IS THEREFORE, ORDERED as f ol lo ws: 1. T he M oti on f or S um m ary Jud gm ent ofDef enda nts Moore and McGow an is hereby granted. 2. Plaintiff, BEACH EXPLORA TION, I NC. , sha ll take nothing a gainst Defenda nts Moore and McGow an ;2 Lehmann waspending in the Suprem e Court w hen the trial court heard the m otion

for sum mary

judgm ent. 5 3. All relief requested and not expressly granted is denied; 4. Cos ts of cou rt are taxed aga inst Plain tiff , BEACH EXPLORA TION, I NC. Signed this 6 day of Feb., 2001. /s/ Mar vin Mar sh all JUDG E PRESIDING The judgm ent here does not nam e, reference, or identifythe remaining 24 worki ng intere st own ers and does not

indicatetha t B eac h ta ke n oth ing in its capacity as operator for the working interest owners. Except for Beach, t he nam es of the remaining working i nterest own ers are not set out in the notice of appeal as required by Rule 25.1(c) and (d)(5) of the TexasRules of Appellate Procedure. Further, the nam es of the rem ai ning 24 working interest owners are not designated as “parties to thetria l cou rt’ s j udg m ent” in Beach’s brief as required by Rule 3 8.1(a). The presum ption that a judgm ent rendered after a conventional trial on the m erits is final and appeal able does not apply to a j udgme nt based on a sum mary judgm ent mot ion, and a j udg m ent w hich disp ose s of

all re m ainin g part ies a nd c laim s isfina l, regar dless of i ts la ng ua ge . Le hman n v. Har -C on Cor p. , 3 9 S. W .3 d 1 91 , 1 99 -2 00 (T ex. 2001). 2 After

reviewing num erous cases, the S upreme Court overruled Mafrige v. Ross, 866 S.W.2d 590 (Tex . 1993), and held t hat theinclusion of a “Mot her Hub bard” claus e-- similar to the clause in th e unde rlying judgm ent--does not indicate that a j udgme nt6

rendered without a conventional trial i s final for purposes of appeal. Id. at 203-04. The Court further held: An order that disposes of claim s by only one of m ultiple pl aintiffs . . . does not adjudicate c laims by . . . other parties. Id . at 205. The Court concluded: Rather, there m ust be som e other c lear indication t hat thetrial court intended the order to com pletely dispose of the entire case. Language that the plaintiff take not hin g by his claim s in thecas e, o r th at t he caseis dismissed , shows f inal ity if there are no other clai ms by other parti

es ; but la nguage that ‘plainti

ff take nothi

ng by hi s clai ms agains t X’ when there i s morethan one defendant or othe r parties i n the case does not

in dicate finality. (Em phasis ad ded). Our revie w of the record as suggested by Lehmann , id

. at 206, “reveals the existence of parties or clai ms not mentioned in the or der,” to-wit: the r emaining 24 working i nterest own ers identified in Beach’s pleadings. Accordingly, the j udgme nt is interlocutory and not subject to a ppe al. For these reasons, this Court is without pow

er to review and consider the appeal and we ha ve jurisdiction only to dism iss the appeal. Accordingly, this appeal is dismissed for w ant of j urisdiction. Don H. Rea vis Justice7

Publish.