Opinion
No. 04-18-00753-CV
02-04-2019
Kenneth GIBUSSA, Appellant v. Sylvia NYAUCHO, Benta Okweso Cornel and Lamech Hamisi, Appellees
COURT OF APPEALS FOURTH COURT OF APPEALS DISTRICT CADENA-REEVES JUSTICE CENTER SANDEE BRYAN MARION CHIEF JUSTICE
REBECA C. MARTINEZ PATRICIA O. ALVAREZ LUZ ELENA D. CHAPA IRENE RIOS BETH WATKINS LIZA A. RODRIGUEZ JUSTICES Lamech Hamisi
11925 Luckey River
San Antonio, TX 78252 Kenneth Gibussa
6422 Palmetto Way
San Antonio, TX 78253 Marisa Aragon
Caritas Legal Services
1801 W. Cesar Chavez Blvd.
San Antonio, TX 78207
* DELIVERED VIA E-MAIL * Mary Angie Garcia
Bexar County District Clerk
101 W. Nueva, Suite 216
San Antonio, TX 78205
* DELIVERED VIA E-MAIL * Honorable Norma Gonzales
Judge, 131st District Court
100 Dolorosa St, 2nd Fl
San Antonio, TX 78205-3028
* DELIVERED VIA E-MAIL * Trial Court Case Number: 2016CI05422
Enclosed please find the order which the Honorable Court of Appeals has issued in reference to the above styled and numbered cause.
If you should have any questions, please do not hesitate to contact me.
Very truly yours,
KEITH E. HOTTLE,
Clerk of Court
/s/_________
Rosa Gonzalez
Deputy Clerk, Ext. 53855 cc: Delcine Benavides (DELIVERED VIA E-MAIL)
Evelyn Martinez Huron (DELIVERED VIA E-MAIL) From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CI05422
Honorable Norma Gonzales, Judge Presiding
ORDER
On October 16, 2018, appellant Kenneth Gibussa filed a notice of appeal seeking to appeal a judgment or order signed on July 24, 2018. The clerk's record was filed in this appeal on December 17, 2018.
The clerk's record reveals the following. On December 21, 2017, Gibussa filed his first amended petition naming three defendants: Sylvia Nyaucho, Benta Okweso Cornel, and Lamech Hamisi. All three defendants filed answers. On June 29, 2018, two of the named defendants — Sylvia Nyaucho and Benta Okweso Cornel — filed a no evidence motion for summary judgment. On July 24, 2018, the trial court signed an order granting the motion which is the order Gibussa seeks to appeal.
After reviewing the clerk's record, this court determined the summary judgment order Gibussa seeks to appeal appears to be interlocutory because it does not dispose of the claims against Lamech Hamisi, and no severance order appears in the record. A summary judgment that does not dispose of all parties and causes of action is not final and appealable. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001). Accordingly, we ordered Gibussa to show cause in writing why this appeal should not be dismissed for lack of jurisdiction.
Gibussa filed a written response to this court's show cause order, stating he tried to take actions to proceed with his claims against Lamech Hamisi, but the trial court clerk and the "defendant attorney" insisted the underlying cause was "dismissed" and "closed." "If the appellate court is uncertain about the intent of [a summary judgment] order, it can abate the appeal to permit clarification by the trial court." Id. at 206. Because the order signed by the trial court appears to be interlocutory but the trial court clerk appears to be providing advice to the contrary, this appeal is ABATED to the trial court for further clarification. The trial court is ORDERED to provide written clarification to this court no later than two weeks from the date of this order regarding the status of Gibussa's claims against Lamech Hamisi.
/s/_________
Sandee Bryan Marion, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 4th day of February, 2019.
/s/_________
KEITH E. HOTTLE,
Clerk of Court