







COURT OF APPEALS








 
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
 
 




 
CMS OIL &
  GAS COMPANY,
 
                            Appellant,
 
v.
 
BELVA SUE NEAL
  BRUSENHAN, TRUSTEE OF THE BELVA SUE BRUSENHAN MANAGEMENT TRUST, AND JESSIE
  FRANCES NEAL ,
 
                            Appellees.


 
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No. 08-02-00067-CV
 
Appeal from the
 
112th Judicial District Court
 
of Upton County, Texas
 
(TC# 00-12-U3692-ANC)




                                                                              
O P I N I O N
 
Pending before the Court is the
motion of Appellees, Belva
Sue Neal Brusenhan, Trustee of the Brusenhan Management Trust, and Jessie Frances Neal, to
dismiss this appeal pursuant to Tex. R.
App. P. 42.3, which states:
Under the following circumstances, on any party=s motion--or on its own initiative after giving ten
days= notice to all parties--the appellate court may
dismiss the appeal or affirm the appealed judgment or order.  Dismissal or affirmance
may occur if the appeal is subject to dismissal:
 
 
 




(a) for want of jurisdiction;
 
(b) for want of prosecution;
or
 
(c) because the appellant has
failed to comply with a requirement of these rules, a court order, or a notice
from the clerk requiring a response or other action within a specified time.
 
Tex. R. App.
P. 42.3.           
Appellees
contend the judgment from which this appeal is taken is interlocutory and non-appealable because it does not fully and finally adjudicate
all issues and claims asserted by them. 
We agree. 
In their
Original Petition, Appellees sought declaratory relief
as to the meaning and effect of Section 22 of an oil and gas lease executed by Appellees, as lessors, and
Appellant, CMS Oil and Gas Company, as lessees. 
The Original Petition also included a breach of contract cause of action
and requested an accounting and attorney=s fees.  In their motions for summary judgment,
Appellant and Appellees address only the legal
construction of Section 22 of the oil and gas lease.  The parties later stipulated to attorney=s fees, which is
reflected in the trial court=s judgment. 




Based on the
record before this Court, it appears that two causes of action, breach of
contract and request for an accounting, were not addressed in the motions for
summary judgment, were not severed, and thus, were not finally disposed of for
purposes of appeal.  Thus, the judgment
before this Court is interlocutory and non-appealable.  The Court has considered this cause on Appellees= motion and concludes the motion should be granted and the
appeal should be dismissed.  We therefore
dismiss the appeal pursuant to Tex. R. App. P. 42.3(a).
December 5, 2002
 
__________________________________________
STEPHEN
F. PRESLAR, Chief Justice (Ret.)
 
Before Panel No.
5
McClure, Chew, JJ., and Preslar, C.J. (Ret.)
Preslar, C.J. (Ret.) sitting by assignment
 
 
 
 
(Do Not Publish)

