Opinion
NO. 14-16-00026-CV
04-05-2016
PETRINA LEWIN AND TRENTON LEWIN, JR., Appellants v. MISSION BEND NO. 5 HOMEOWNERS ASSOCIATION, INC., Appellee
On Appeal from the 268th District Court Fort Bend County, Texas
Trial Court Cause No. 14-DCV-216722
ABATEMENT ORDER
This is an appeal from a document entitled "Final Summary Judgment" signed October 9, 2015. It appears from the record that the judgment is not final.
The Texas Supreme Court has advised that if an appellate court is uncertain about the intent of an order to finally dispose of all claims and parties, it can 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 30 days so that the trial court may clarify whether the summary judgment is final, and to permit the parties to obtain an order or orders disposing of appellants' counterclaim against appellee, if necessary. A supplemental clerk's record containing the trial court's clarifying order(s) shall be filed with the clerk of this court on or before May 5, 2016.
This abatement is done on the court's own motion. By abating this case, the court is not granting the relief requested in appellants' motion to abate, filed March 11, 2016. That motion and appellants' motion for extension of time to file their brief (filed March 15, 2016) are DENIED AS MOOT. Appellants' motion for extension of time to file their notice of appeal remains pending.
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.
PER CURIAM