Anna Maria Salinas Saenz (Appellant/Cross-Appellee Cross-Appellant) v. Thorp Petroleum Corp. (Appellee/Cross-Appellant Cross-Appellee)

Opinion

MEMORANDUM OPINION No. 04-11-00852-CV

Anna Maria Salinas SAENZ, et al., Appellants/Cross-Appellees

v.

THORP PETROLEUM CORP., et al., Appellees/Cross-Appellants

From the 229th Judicial District Court, Starr County, Texas Trial Court No. DC-04-120 Honorable Ana Lisa Garza, Judge Presiding

PER CURIAM

Sitting: Phylis J. Speedlin, Justice Rebecca Simmons, Justice Steven C. Hilbig, Justice

Delivered and Filed: March 14, 2012

DISMISSED FOR LACK OF JURISDICTION

Anna Maria Salinas Saenz, et al. filed suit alleging claims for trespass to try title as well

as declaratory judgment, tort, contract and lease claims. The “Salinas defendants” filed a

counterclaim seeking to recover royalties that were wrongfully paid to the plaintiffs; they also

sought a declaratory judgment. Defendants Thorp Petroleum Corporation, El Paso Production

Company, and Smith Production, Inc. suspended royalty payments and paid them into the

registry of the court; the Salinas defendants sought an order that all suspended royalty payments 04-11-00852-CV

be made to the party entitled to such payments. The Salinas defendants also filed a crossaction

seeking to recover royalty payments.

On May 28, 2010, the trial court granted interlocutory motions for summary judgments

on behalf of the Salinas defendants and the oil companies and entered a declaratory judgment

that a 1968 partition agreement/deed was valid. This ruling disposed of the plaintiffs’ trespass to

try title claim, which was predicated on the 1968 partition agreement/deed being invalid. On

December 15, 2010, the trial court signed a pretrial order in which it stated that “[t]here is,

therefore, nothing to try in the plaintiffs’ suit.” However, the court continued to note that other

issues remained pending, including claims for interpleader funds. At that time, the court also

severed the Salinas defendants’ cross-claims and counterclaims concerning overpayment of

royalties into cause number DC-04-120-B; those claims were disposed of by order granting

summary judgment signed on October 31, 2011, 1 which is now the subject of appeal number 04-

11-00873-CV.

On December 1, 2011, appellants filed a notice of appeal in cause number DC-04-120

challenging: (1) the trial court’s summary judgment orders signed on May 28, 2010, (2) the

severance order signed on October 20, 2010, which was subsequently vacated on December 15,

2010, see Saenz v. Thorp Petroleum Corp., No. 04-10-000837-CV, 2011 WL 1303802, at *1

(Tex. App.—San Antonio April 6, 2011, no pet.), (3) the order denying plaintiffs’ motion to

reconsider summary judgment ruling with reference to issues of title signed on June 13, 2011,

and (4) all ancillary and related orders and rulings. From our initial review of the record it

appeared that the complained of orders are interlocutory because there exist pending claims for

1 The summary judgment order signed on October 31, 2011 disposes of the Salinas defendants’ claims for attorney’s fees and their counterclaims and cross-claims concerning claims of overpayment or wrongful payment of royalties; the order dismisses all such claims and orders that the defendants take nothing on those claims.

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interpleader funds in cause number DC-04-120. Thus, we ordered appellants to show cause in

writing why this appeal should not be dismissed for lack of jurisdiction.

Appellants responded and filed a Statement Regarding Jurisdiction, arguing that both

summary judgments dated May 28, 2010 and October 31, 2011 resolved the issue of who is

entitled to the interpleaded funds; appellants also explained that on August 4, 2010, the Salinas

defendants/appellees abandoned their claim for an accounting of monies paid into the registry of

the court as royalty payments during the pendency of the suit.

The Salinas appellees filed a response to the appellants’ Statement Regarding

Jurisdiction. They state that they also have claimed funds in the registry of the court and respond

that they did not abandon their claims for an accounting and audit. They specify that they

withdrew their claims for an accounting and audit in the context of discussions with the court

about a potential severance to make the “title” summary judgment final; the title issues remained

with the original proceeding. Moreover, the Salinas appellees filed a motion for audit on

October 7, 2011 and a request for accounting on November 7, 2011; it does not appear that the

motions were disposed of. In addition, appellee Smith Production, Inc. filed a response and also

agrees that the challenged orders are interlocutory with respect to cause number DC-04-120

because the trial court has yet to enter a final judgment directing the clerk to disperse the

interpleaded funds.

After reviewing the responses and the record, we conclude that the complained of orders

are not final and appealable because they do not dispose of all causes of action in this suit.

Therefore, we do not have jurisdiction over this appeal. See Lehmann v. Har-Con Corp., 39

S.W.3d 191, 200 (Tex. 2001). Accordingly, this appeal is dismissed for lack of jurisdiction. See

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TEX. R. APP. P. 42.3(a). Additionally, the Salinas Defendants’ Opposed Motion to Consolidate

for Purposes of Record filed on March 7, 2012 is MOOT.

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