                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 27, 2006

                                                         Charles R. Fulbruge III
                            No. 05-30968                         Clerk
                          Summary Calendar




MICHAEL HOUSTON; STEVE HOUSTON,
                                             Plaintiffs-Appellants,

v.

EL PASO PRODUCTION CO.
                                               Defendant-Appellee.



            Appeal from the United States District Court
                for the Western District of Louisiana
                        (5:05-CV-00033-TS-MLH)


Before KING, WIENER, and DEMOSS, Circuit Judges.

PER CURIAM:*

     The plaintiff-appellants, Michael and Steve Houston (“the

Houstons”), proceeding pro se, sued defendant-appellee El Paso

Production Company (“El Paso”) for rent and royalties under a

mineral lease in which their deceased father, Mack Houston, had an

interest.   El Paso filed a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6).     After reviewing the briefs and the

record, we affirm the dismissal for the reasons stated in the




     *
       Under 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
district court’s judgment and the magistrate judge’s report and recommendation.

      We note, however, that the district court did not specify

whether the dismissal was with or without prejudice.              Under such

circumstances, the presumption is that the dismissal was with

prejudice.2    Moreover, the Houstons filed a post-judgment motion

which we construe as a Rule 59(e) motion to alter or amend the

judgment.     In that motion, the Houstons requested, inter alia, an

amendment to reflect that the judgment was without prejudice so

that they could later re-file if necessary after complying with the

lease.    The court denied the motion without discussion.            Although

these two circumstances compel us to presume that the dismissal was

with prejudice, the language of the judgment permits the intrusion

of some doubt by indicating that the district court may have

expected the Houstons to later re-file their claim.            Specifically,

the court stated:

            Because of the status of Louisiana succession law
            at the time of Mack Houston’s death in 1994, it
            appears that the plaintiffs likely qualify as
            forced heirs as their claim suggests. However, it
            is clear to the court that any claims the
            plaintiffs have as forced heirs cannot be enforced
            until the proper steps have been taken in the
            succession process.      Accordingly, for these

      2
      See Fed. R. Civ. P. 41(b) (providing that, with limited
exceptions, all dismissals function as adjudications upon the
merits); Callip v. Harris County Child Welfare Dept., 757 F.2d
1513, 1519 (5th Cir. 1985) (observing that an involuntary order
of dismissal is with prejudice unless specifically designated
otherwise); Tuley v. Heyd, 482 F.2d 590, 594 n. 2 (5th Cir. 1973)
(“An involuntary dismissal must be considered to be with
prejudice unless the district court specifies that its order is
entered without prejudice.”).

                                   2
          reasons, as well as for the reasons [stated by] the
          Magistrate Judge... the motion to dismiss is
          GRANTED.

     The Houstons contend that it was error for the district court

to deny their motion to amend the judgment to reflect that it was

without prejudice.3   We review Rule 59(e) motions for abuse of

discretion.4   Unlike the district court’s reasons for denying the

rest of the Houstons’ requests in their motion to amend, the

court’s reasons for its decision to deny their request to amend the

judgment to reflect that it be without prejudice are not apparent

from the record. Therefore, we cannot properly review the district

court’s exercise of its discretion to deny the motion on this

particular issue. Accordingly, we remand to the district court for

the limited purpose of clarifying whether the dismissal was, in

fact, with prejudice, and, if so, specifying the reasons for

disposing of the action with prejudice.

AFFIRMED in part; REMANDED in part.




     3
      Although the Houstons did not artfully raise the issue on
appeal, it is our practice to construe pro se briefs liberally.
Perez v. United States, 312 F.3d 191, 194-95 (5th Cir. 2002).
     4
      Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005).

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