Opinion
01-24-00132-CV
08-13-2024
Debra Jennings and Lorin Roberts v. Pride Houston, Inc., Pride Committee of Houston, Inc and Thasia Madison, in her Capacity as President of Pride Houston, Inc.
Trial court: 189th District Court of Harris County, Trial court case number: 2021-40041.
ABATEMENT ORDER
Richard Hightower, Judge.
This appellate case includes appeals from different orders. Appellant Debra Jennings filed a notice of appeal on February 16, 2024, complaining of the trial court's denial by operation of law of her motion to reconsider the denial of her motion to withdraw as counsel. Jennings has filed a motion to dismiss her appeal, which remains pending before the Court. Appellant Lorin Roberts, a/k/a Lorin E. Roberts, as Former Executive Director and Former Past President of Pride Houston, Inc., and in her Individual Capacity (hereinafter "Roberts") filed a notice of appeal on June 7, 2024, complaining of the May 7, 2024 order denying her motion for new trial and the trial court's alleged final judgment signed December 4, 2024. In this notice of appeal, Roberts states that the trial court entered an order denying a new trial on May 7, 2024, which indicated that a final judgment "remains effective," but Roberts states that no final judgment disposing of all parties and claims exists. Therefore, Roberts suggests that there is no current deadline for filing a notice of appeal. But Roberts argues in the alternative, that if we determine that the trial court's February 27, 2024 order is a final judgment, the notice of appeal would be due on May 28, 2024 and asks for an extension of time to file her notice of appeal.
Before addressing whether to grant Roberts' request for extension of time to file her notice of appeal, the Court must determine whether it has jurisdiction in this case. The clerk's record shows that, in the February 27, 2024 final judgment, the trial court granted Plaintiff Pride Houston, Inc.'s motion for entry of final judgment on the trial court's December 4, 2023 interlocutory Amended/Modified Partial Summary Judgment Order and granted Plaintiff's Traditional and No-Evidence Motion for Partial Summary Judgment on Plaintiff's causes of action against Roberts for breach of fiduciary duty, embezzlement/theft, fraud, fraud inducement, and breach of contract. The trial court also awarded damages to plaintiff and stated "This is a final judgment."
The clerk's record contains a third amended original petition, filed on June 3, 2022, brought by three plaintiffs: Pride Houston, Inc., Pride Committee of Houston, Inc., and Thasia Madison, in her capacity as President of Pride Houston, Inc. The defendants sued by these three plaintiffs include Roberts as well as Jacob Siegal and Dustin Sheffield. The clerk's record indicates that Pride Houston, Inc. filed a notice of nonsuit, and the trial court ordered this nonsuit granted, as to defendant Dustin Sheffield, and this defendant was dismissed from the lawsuit on January 18, 2024. Pride Houston, Inc. also filed a notice of nonsuit as to its claims against Roberts for breach of non-compete/non-solicitation agreement, conversion, misappropriation of trade secrets, tortious interference, civil conspiracy, and negligent misrepresentation. The trial court ordered this nonsuit granted and dismissed Pride Houston, Inc.'s claims of breach of non-compete/non-solicitation agreement, conversion, misappropriation of trade secrets, tortious interference, civil conspiracy, and negligent misrepresentation.
The notices of nonsuit appear to be filed only by one plaintiff, Pride Houston, Inc., leaving the claims alleged by plaintiffs Pride Committee of Houston, Inc. and Thasia Thasia Madison, in her capacity as President of Pride Houston, Inc. pending. Moreover, the clerk's record contains no nonsuit as to defendant Jacob Siegal. The clerk's record also contains a motion for traditional and no-evidence partial summary judgment filed on August 31, 2023 by all three plaintiffs, but these include Pride Houston, Inc., Pride Committee of Houston, Inc., and Kendra Walker, in her capacity as President of Pride Houston, Inc. The clerk's record does not contain a pleading that deletes plaintiff Thasia Madison and adds Kendra Walker.
Based on the above, it appears from the record that the judgment is not final. An order will constitute a final judgment if it disposes of all remaining parties and claims before the court or it includes unequivocal finality language that expressly disposes of all parties and claims. See In re Urban 8 LLC, 689 S.W.3d 926, 929 (Tex. 2024). The June 27, 2024 "final judgment" does not include unequivocal finality language and does not appear to dispose of all parties and claims. See Crites v. Collins, 284 S.W.3d 839, 841 (Tex. 2009) (order not final when it did not unequivocally express an intent for order to be final and appealable order and did not address all pending claims).
The Supreme Court of Texas has advised that if an appellate court is uncertain about the intent of an order to finally dispose of all claims and parties, it may abate the appeal to permit clarification by the trial court. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001). Texas Rule of Appellate Procedure 27.2 provides as follows:
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 order the case abated and remanded to the trial court for a period of thirty days so that the trial court may clarify whether the February 27, 2024 judgment is final and appealable. A supplemental clerk's record containing the trial court's clarifying order shall be filed with the clerk of this court on or before September 13, 2024.
The appeal is abated, treated as a closed case, and removed from this Court's active docket. The appeal will be reinstated on this Court's active docket when the supplemental clerk's record is filed in this Court. The Court will also consider an appropriate motion to reinstate the appeal filed by either party, or the Court may reinstate the appeal on its own motion. It is the responsibility of any party seeking reinstatement to request a hearing date from the trial court and to schedule a hearing, if a hearing is required, in compliance with this Court's order. If the parties do not request a hearing, the court coordinator of the trial court shall set a hearing date and notify the parties of such date.
It is so ORDERED.