Opinion
14-23-00254-CV
06-04-2024
HITCHCOCK INDUSTRIAL DEVELOPMENT CORPORATION, Appellant v. CRESSMAN TUBULAR PRODUCTS CORPORATION, Appellee
On Appeal from the 405th District Court Galveston County, Texas Trial Court Cause No. 21-CV-0375
Panel consists of Justices Hassan, Poissant, and Wilson.
ABATEMENT ORDER
PER CURIAM
Appellant Hitchcock Industrial Development Corporation seeks to appeal from the trial court's March 31, 2023 order ("Order") to the extent the order addresses Hitchcock's plea to the jurisdiction (the "Plea"). A person may appeal from an order of a district court that grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in section 101.001 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. §51.014(a)(8) (West, Westlaw through 2023 4th C.S.). This court lacks appellate jurisdiction unless the Order either granted or denied the Plea.
In its plea to the jurisdiction, Hitchcock asked the trial court to dismiss the tort claims asserted against it by appellee Cressman Tubular Products Corporation, arguing that Hitchcock enjoyed immunity from suit as to these claims. Hitchcock also asserted a motion for summary judgment as to Cressman's breach of contract claim, although Hitchcock does not seek to appeal as to this motion. Cressman filed a response in opposition, asserting that Hitchcock did not have immunity from suit and that Hitchcock was not entitled to summary judgment. Cressman asserted that the trial court should deny the Plea and Hitchcock's summary-judgment motion.
The trial court addressed the Plea and Hitchcock's summary-judgment motion in the Order. The Order's title is "ORDER GRANTING DEFENDANT CRESSMAN TUBULAR PRODUCTS CORPORATION'S RESPONSE TO DEFENDANT HITCHCOCK INDUSTRIAL CORPORATION'S PLEA TO THE JURISDICTION AND SUMMARY JUDGMENT MOTION." The proper way to adjudicate a motion is to rule on the motion, not to rule on a response in opposition to the motion. The Order contains only the following sentence: "After considering Defendant/Third-Party Plaintiff Cressman Tubular Products Corporation's ("Cressman") Response to Third-Party Defendant Hitchcock Industrial Development Corporation's ("HIDC") Plea to the Jurisdiction (PTJ) and Summary Judgment Motion (SMJ), the Court is of the opinion that HIDC's PTJ and SMJ should be DISMISSED." No party asserted that the Plea or the summary-judgment motion should be dismissed. Nonetheless, the trial court stated in the Order that it was of the opinion that the Plea and the summary-judgment motion should be dismissed. Though the trial court expressed this opinion, it did not include any decretal language in the Order in which the court rules on the Plea or the summary-judgment motion. By failing to include language stating that the trial court dismissed, denied, or granted the Plea, the trial court failed to rule on the Plea in the Order. See In re Wilmington Trust, N.A., 524 S.W.3d 790, 791-93 (Tex. App.-Houston [14th Dist.] 2017, orig. proceeding). Though the trial court's docket sheet says that the Order is an order denying the Plea and the summary-judgment motion, we cannot conclude that the Order denied the Plea based on this docket entry. See id.
Though the record indicates that the trial court tried to rule on the Plea, the Order does not constitute a ruling on the Plea. The trial court's failure to rule on the Plea prevents the proper presentation of this case, and the trial court can correct this failure to act. See Tex. R. App. 44.4; American Home Prods. Corp. v. Clark, 38 S.W.3d 92, 96-97 (Tex. 2000). We ORDER the trial court to sign an order ruling on the Plea and containing decretal language in which the trial court states its ruling on the Plea. This order is to be signed on or before June 14, 2024.
We further ORDER the trial-court clerk to prepare, certify, and file with the clerk of this court a supplemental clerk's record containing the trial court's order ruling on the Plea. This record is due no later than 7 days after the trial court signs an order ruling on the Plea. This appeal is abated and treated as a closed case. This appeal will be reinstated on this court's active docket without further order of this court when the supplemental clerk's record is filed with the clerk of this court. This court will also consider an appropriate motion to reinstate the appeal filed by either party, or this court may sua sponte reinstate the appeal.