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).

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       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.




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      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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