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McCall v. Tana Oil and Gas Corp.

When a judgment not intrinsically interlocutory in character is rendered and entered in a case regularly set for a conventional trial on the merits it will be presumed for appeal purposes that the court intended to, and did, dispose of all parties legally before it and all issues made by the pleadings between such parties.

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Tom C. McCall and David B. McCall (the “McCalls”) appeal from a judgment that they take nothing by their claims against Tana Oil and Gas Corporation and Robert B. Rowling (“appellees”). We will affirm the judgment in part and reverse in another part, remanding to the trial court the part reversed.

THE CONTROVERSY

John Niemeyer retained the McCalls to represent him in litigation with Tana Oil and Gas Corporation. In Niemeyer’s behalf, the McCalls sued the corporation on October 19, 1995, in the Fayette County district court, to recover mineral royalties allegedly owed Niemeyer. *fn2 Very soon thereafter, appellees alleged various causes of action in a suit against the McCalls, Niemeyer, and other members of the Niemeyer family, filed November 2, 1995, in a district court of Nueces County. On April 22, 1998, in an original mandamus action brought by the McCalls, the Thirteenth Court of Appeals ordered abatement of the Nueces County suit, but not before the McCalls had incurred substantial attorneys’ fees defending against appellees’ Nueces County suit. See In re McCall, 967 S.W.2d 934 (Tex. App.-Corpus Christi 1998, orig. proceeding).

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