Devon Energy Production Company, L.P., F/K/A GeoSouthern Dewitt Properties, LLC, BHP Billiton Petroleum Properties (N.A.), LP F/K/A Petrohawk Properties LP, GeoSouthern Energy Corporation, and Petrohawk Energy Corporation v. Michael A. Sheppard, Constance S. Kirk, Jennifer S. Badger, Frank B. Sheppard, James K. Crain, Christopher M. Crain, James K. Crain, III, Patrick G. Crain, and Shirley R. Crain
NUMBER 13-18-00069-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DEVON ENERGY PRODUCTION
COMPANY, L.P., F/K/A GEOSOUTHERN
DEWITT PROPERTIES, LLC, BHP BILLITON
PETROLEUM PROPERTIES (N.A.), LP F/K/A
PETROHAWK PROPERTIES LP,
GEOSOUTHERN ENERGY CORPORATION,
AND PETROHAWK ENERGY CORPORATION, Appellants,
v.
MICHAEL A. SHEPPARD, CONSTANCE S. KIRK,
JENNIFER S. BADGER, FRANK B. SHEPPARD,
JAMES K. CRAIN, CHRISTOPHER M. CRAIN,
JAMES K. CRAIN III, PATRICK G. CRAIN, AND
SHIRLEY R. CRAIN, Appellees.
On appeal from the 24th District Court
of DeWitt County, Texas.
MEMORANDUM OPINION
Before Chief Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Benavides
This is an appeal from a summary judgment on stipulated issues of lease royalty
interpretation. Michael A. Sheppard, Constance S. Kirk, Jennifer Badger, Frank B.
Sheppard, James K. Crain, Christopher M. Crain, James K. Crain, III, Patrick G. Crain and
Shirley Crain (collectively Appellees) sued Devon Energy Production Company, L.P., f/k/a
GeoSouthern DeWitt Properties, LLC, GeoSouthern Energy Corporation, BHP Billiton
Petroleum Properties (N.A.), LP, f/k/a Petrohawk Energy Corporation (collectively
Appellants) for declaratory judgment regarding the interpretation of oil and gas royalty
contracts, an accounting, breach of contract, and attorneys’ fees “pursuant to Section
38.001 of the Texas Civil Practice and Remedies Code and Section 91.406 of the Texas
Natural Resources Code.”
The parties filed an agreed motion asking the trial court to “sever and abate all
claims or damages (except for Plaintiffs’ claims for attorneys’ fees, if applicable, under the
Declaratory Judgment Act) . . .” The trial court granted the joint motion and then decided
competing summary judgment motions in favor of Appellees. Appellants appeal.
We first question whether the trial court’s order on summary judgment was a final
order.1 This Court abated the appeal and remanded to the trial court for clarification. On
remand, the trial court issued its Order Clarifying that No Final Judgment Has Been
Entered because “Plaintiffs’ claim for attorneys’ fees [in the declaratory judgment action]
remain[s] pending before the Court.” The trial court clarified the record as requested and
the case is hereby REINSTATED.
1The order at issue is the Declaratory Judgment on the Parties’ Cross-Motions for Summary
Judgment (Declaratory Judgment).
2
Appellants argue that the Declaratory Judgment disposed of all claims that were
not severed. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 204, 206 (Tex. 2001)
(holding that a judgment is final if it disposes of all parties and all claims); Heritage Gulf
Coast Props., Ltd. v. Sandalwood Apartments, Inc., 416 S.W.3d 642, 661‒62 (Tex. App.—
Houston [14th Dist.] 2013, no pet.) (holding that the pleading is insufficient to support
attorney’s fees). Appellants’ argument is two-pronged: 1) the parties’ Rule 11 Agreement
provided that any Declaratory Judgment Act attorneys’ fees claims would be adjudicated
under section 38.001 of the Texas Civil Practice and Remedies Code in the severed
action; and 2) Plaintiffs’ Second Amended Petition does not assert a claim for attorneys’
fees under the Declaratory Judgment Act.
Unless the record affirmatively shows the propriety of appellate jurisdiction, we must
dismiss the appeal. See Steeple Oil & Gas Corp. v. Amend, 394 S.W.2d 789, 790 (Tex.
1965) (per curiam) (dismissing an appeal from an interlocutory judgment for lack of
jurisdiction). The Declaratory Judgment does not adjudicate Plaintiffs’ claim for attorneys’
fees. Nor did Plaintiffs’ Motion for Partial Summary Judgment raise the issue. Lastly, the
parties asked—and the trial court ordered—that Appellees’ claim for attorneys’ fees not be
severed into a separate suit. As a result, Appellees’ claim for attorneys’ fees remains in
this suit and has not been disposed. Accordingly, the Declaratory Judgment does not
dispose of all claims and cannot constitute a final judgment pursuant to Lehmann.
Lehmann, 39 S.W.3d at 206.
3
The Court DISMISSES the appeal for lack of jurisdiction. Tex. R. App. P. 43.2(f);
see Farm Bureau Cty Mut. Ins. Co. v. Rogers, 455 S.W.3d 161, 164 (Tex. 2015).
GINA M. BENAVIDES,
Justice
Delivered and filed the
21st day of June, 2018.
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