McCormick Operating Co. v. Gibson Drilling Co.

• Decision Date: 28 August 1986
• Docket Number: No. 12-85-0148-CV,12-85-0148-CV
• Citation: 717 S.W.2d 425
• Parties: McCORMICK OPERATING COMPANY, Appellant, v. GIBSON DRILLING COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 425

717 S.W.2d 425

McCORMICK OPERATING COMPANY, Appellant, v. GIBSON DRILLING COMPANY, Appellee.

No. 12-85-0148-CV.

Court of Appeals of Texas Tyler.

Aug. 28, 1986.

Rehearing Denied Oct. 23, 1986.

David Robertson, Longview, for appellant.

Charles H. Clark, Tyler, for appellee.

BILL BASS, Justice.

This is an appeal by McCormick Operating Company, defendant/indemnitor, from a summary judgment entered in favor of Gibson Drilling Company, plaintiff/indemnitee. McCormick contends that the court erred in rendering summary judgment because the summary judgment evidence demonstrates the existence of a genuine issue of material fact. We conclude that the summary judgment is interlocutory in nature and we are therefore without jurisdiction to consider the appeal.

Gibson contracted with McCormick to drill an oil well for McCormick. McCormick also hired George Roberts Consultants, Inc. to oversee the drilling operations. Clyde Stracener, a drilling consultant for the George Roberts firm, alleged that he was injured while on the Gibson rig supervising the drilling operations and he sued Gibson. Gibson then brought a cross-action against McCormick under the terms of the drilling agreement for "complete indemnification and/or contribution" and for reimbursement of all costs incurred in defending against Stracener's claim.

The trial court rendered summary judgment in favor of Gibson against McCormick ordering McCormick to defend Stracener's suit against Gibson and to pay "any judgment obtained herein by plaintiff, Clyde Stracener, to the extent of its insurance coverage as shown by Exhibit 'B' to the motion for summary judgment filed herein by Gibson Drilling Company." Exhibit "B" contains photocopies of several insurance policies. The court further ordered the severance of Gibson's cross-action against McCormick from Stracener's suit against Gibson "in order for this judgment to become a final judgment."

Although there are exceptions, the general rule is that a final and appealable judgment must determine the entire controversy, disposing of all the parties and issues in the case. Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890 (1956). Finality requires a determination of all the rights and liabilities of the parties which have been placed in issue. North East Independent School Dist. v. Aldridge, 400 S.W.2d 893 (Tex.1966). The judgment must conclude the dispute so that no further questions will arise requiring judicial determination. Jordan v. Burbach, 330 S.W.2d 249 (Tex. Civ. App.--El Paso 1959, writ ref'd n.r.e.). An interlocutory decree or order does not conclude the controversy, but reserves some question for future determination. A purported judgment expressly referring to an undecided issue is plainly interlocutory. Dimerling v. Grodhaus, 152 Tex. 548, 261 S.W.2d 561 (1953). A judgment is not final if the damages awarded are unliquidated, conditional or contingent upon the outcome of another trial. Evans v. Young County Lumber Company, 368 S.W.2d 783 (Tex. Civ. App.--Fort Worth 1963, err. dism'd).

The trial court, in Hunt Oil Company v. Moore, 639 S.W.2d 459 (Tex.1982), decreed Hunt's lease terminated, vested title in Moore, and ordered that Hunt render an accounting to Moore for the oil and gas attributable to Moore's interest. Moore was awarded costs of suit, but the judgment did not mention his claim for prejudgment interest. The Supreme Court held the judgment was not appealable because "any award of damages based on the accounting necessarily had to occur at a subsequent time" and because the judgment did not address Moore's claim for prejudgment interest.

In United States Automobile Association v. Eberly, 399 S.W.2d 886 (Tex. Civ. App.--Corpus Christi 1966, no writ), plaintiff sought declaratory judgment that the plaintiffs were "insureds" and the vehicle with which they collided an "uninsured automobile" within the meaning of the insurance policy issued by the defendant liability insurer. Plaintiffs also sought damages from the defendant carrier to the extent of the limits of the insurance policy that it had issued. The trial court severed the cause from other claims against other defendants and granted plaintiffs' summary judgment "for all relief sought against said defendant ... except as to amount of damages." Since plaintiffs' petition expressly sought recovery of money damages and the issue was not concluded by the judgment, the court held the judgment was interlocutory and not appealable. ¹

In severing the cross-action for indemnity from the underlying suit for personal injuries, the trial court expressly sought to impart finality to summary judgment. But although there has been a severance of the two causes, the judgment in the severed cause must still possess all the requisites of finality for an appeal to lie. In the instant case, the judgment orders McCormick to pay any judgment obtained by Stracener against Gibson "to the extent of its insurance coverage as shown by Exhibit 'B.' " The judgment leaves open the issue of the amount of damages, if any, due Gibson by McCormick, but conditions Gibson's recovery on the outcome of Stracener's suit and also upon the extent of McCormick's insurance coverage.

A court may render a judgment that is final and appealable fixing the rights and liabilities of the parties, but defer its enforcement...