Opinion
09-23-00134-CV
06-20-2024
ALABASTER, INC. AND JOHN SHEFFIELD, Appellants v. BRENT W. COON AND BRENT W. COON, PC D/B/A BRENT COON & ASSOCIATES, Appellees
On Appeal from the 172nd District Court Jefferson County, Texas Trial Cause No. E199958
Before Golemon, CJ, Horton and Johnson, JJ.
ORDER
PER CURIAM
On April 6, 2023, the trial court signed an Order that granted "Defendants' Motion to Dismiss without Prejudice against Plaintiffs, Alabaster, Inc., and John Sheffield." Appellants Alabaster, Inc. and John Sheffield are appealing this Order, yet it does not resolve Appellees Brent W. Coon and Brent W. Coon, PC d/b/a Brent Coon & Associates' ("Coon") counterclaims for attorney's fees and sanctions. Appellants are also appealing the trial court's Order denying Plaintiffs' Motion to Reconsider Order Compelling Arbitration signed January 6, 2020.
To be final, a judgment must dispose of all issues and parties in a case. N.E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). No presumption of finality arises when a judgment is signed without a traditional trial on the merits. Crites v. Collins, 284 S.W.3d 839, 841 (Tex. 2009). To determine whether such an order is final, we examine the order's express language and whether it actually disposes of all claims against all parties. Id. "A judgment that finally disposes of all remaining parties and claims, based on the record in the case, is final, regardless of its language."Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001). "Thus, if a court has dismissed all of the claims in a case but one, an order determining the last claim is final." Id. A judgment is final either if "it actually disposes of every pending claim and party" or "it clearly and unequivocally states that it finally disposes of all claims and all parties." Id. at 205. When unmistakable language of finality is missing, the record resolves the issue. Bella Palma, LLC v. Young, 601 S.W.3d 799, 801-02 (Tex. 2020). "If the appellate court is uncertain about the intent of the order, it can abate the appeal to permit clarification by the trial court." Lehmann, 39 S.W.3d at 206.
The record reveals that Coon had a pending counterclaim for attorney's fees and sanctions that the April 6, 2023 Order did not address. Further, the Order does not contain unequivocal language of finality. See Young, 601 S.W.3d at 801-02; Lehmann, 39 S.W.3d at 205. The April 6, 2023 Order is interlocutory because of Coon's unresolved counterclaim for attorney's fees. See N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678-79 (Tex. 1990) (concluding court of appeals erred by assuming jurisdiction over appeal when defendant's counterclaim for attorney's fees remained pending).
Appellants' Notice of Appeal also states they desire to appeal the trial court's January 6, 2020 Order denying their "Motion to Reconsider Order Compelling Arbitration." Interlocutory orders may be appealed only if allowed by statute and to the extent the statute confers jurisdiction. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266,272 (Tex. 1992) (orig. proceeding). Under the FAA and TAA, an order denying a motion to compel arbitration is immediately appealable, but an order compelling arbitration is not. See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.016 (citing 9 U.S.C.A. § 16(b)), 171.098. Further, an order denying a motion to reconsider a trial court's arbitration decision is not an appealable interlocutory order. See also Brand FX, LLC v. Rhine, 458 S.W.3d 195, 201 (Tex. App.-Fort Worth 2015, no pet.) (explaining that although denial of motion to compel arbitration was immediately appealable, denial of motion to reconsider is not immediately appealable).
"The appellate court may allow an appealed order that is not final to be modified so as to be made final and may allow the modified order and all proceedings relating to it to be included in a supplemental record." Tex.R.App.P. 27.2. Accordingly, we abate the appeal and remand the cause to the trial court. See id. Upon remand, the trial court may issue such further orders or judgments necessary to clarify its April 6, 2023 Order or to create a final, appealable order in this cause. See id.; see also Lehmann, 39 S.W.3d at 206. Unless a final, appealable order or judgment is included in a supplemental clerk's record and filed with the clerk of this court on or before July 22, 2024, the appeal will be reinstated and dismissed for want of jurisdiction.
ORDER ENTERED.