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Ajanaku v. Dadashev

Court of Appeals of Texas, Fourteenth District
Nov 16, 2021
No. 14-21-00478-CV (Tex. App. Nov. 16, 2021)

Opinion

14-21-00478-CV

11-16-2021

OLUBUNMI AJANAKU AND OLUKAYODE AJANAKU, Appellants v. MARDAN DADASHEV, Appellee


On Appeal from County Court at Law No. 1 Fort Bend County, Texas Trial Court Cause No. 18-CCV-062210

Panel Consists of Chief Justice Christopher and Justices Hassan and Poissant.

ABATEMENT ORDER

PER CURIAM

The record before this court contains three partial summary judgments, none of which contain language of finality. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001) ("This judgment finally disposes of all parties and all claims and is appealable."). In response to notice that this court would consider dismissal of the appeal for want of jurisdiction unless any party filed a response showing meritorious grounds for continuing the appeal, appellants filed a motion to abate the appeal for finality. See Tex. R. app. P. 42.3. Appellee filed a response asserting the notice of appeal was untimely filed and the third partial summary judgment is a final and appealable judgment.

This attempted appeal is from the third and last partial summary judgment, signed June 8, 2021. The notice of appeal was filed August 23, 2021, a date that is within ninety (90) days of the judgment signed June 8, 2021. The record reflects appellants timely filed a request for rehearing on June 14, 2021, asking the trial court to set aside the summary judgment. Since appellants timely filed a post- judgment motion that operated to extend the appellate timetable, the notice of appeal is timely. See Tex.R.App.P. 26.1(a).

Although appellee asserts all parties and all claims have been disposed of, neither party has demonstrated the judgment of June 8, 2021, is final and appealable. Accordingly, appellants' motion is granted, and we abate the appeal for clarification by the trial court. See Lehmann, 39 S.W.3d at 206. Texas Rule of Appellate Procedure 27.2 provides we "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." See 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 summary judgments are final, and to permit the parties to obtain an order or orders disposing of all claims, if necessary. A supplemental clerk's record containing the trial court's clarifying order(s) shall be filed with the clerk of this court within thirty days of the date of this order.

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 a hearing is required, and 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.


Summaries of

Ajanaku v. Dadashev

Court of Appeals of Texas, Fourteenth District
Nov 16, 2021
No. 14-21-00478-CV (Tex. App. Nov. 16, 2021)
Case details for

Ajanaku v. Dadashev

Case Details

Full title:OLUBUNMI AJANAKU AND OLUKAYODE AJANAKU, Appellants v. MARDAN DADASHEV…

Court:Court of Appeals of Texas, Fourteenth District

Date published: Nov 16, 2021

Citations

No. 14-21-00478-CV (Tex. App. Nov. 16, 2021)