Opinion
NO. 14-16-00727-CV
12-12-2017
HARVELLA JONES, Appellant v. JONATHAN ANDERSON, Appellee
On Appeal from the County Court at Law No. 2 Fort Bend County, Texas
Trial Court Cause No. 14-CCV-052079
ABATEMENT ORDER
Plaintiff/appellant Harvella Jones filed a notice of appeal from an order signed by the trial court on August 16, 2016, granting defendant Jonathan Anderson's motion for the trial court to declare Jones a vexatious litigant and to require her to post security. See TEX. CIV. PRAC. & REM. CODE ANN. § 11.051 (West 2017). The trial court stated in its order that the case would be dismissed with prejudice if Jones failed to post a $20,000 surety bond with the court clerk by September 15, 2016. See id. § 11.056 (requiring a trial court to dismiss the plaintiff's claims against moving defendant if the plaintiff fails to furnish security by the time stated in the trial court's order). The trial court further ordered the suit abated until Jones posted the surety bond or until the case was "dismissed by further order of this Court." See id. § 11.052(b) (providing that the filing of a vexatious-litigant motion stays the litigation until the tenth day after the motion is denied or the tenth day after the defendant receives written notice that the plaintiff furnished the required security). Two days before the deadline for her to post the surety bond, Jones filed her notice of appeal.
Jones's notice of appeal also states that she appeals an order signed April 12, 2016, denying her motion to recuse or disqualify the Honorable Jeffery McMeans, but that order is no longer subject to review. Less than a week after the order denying recusal was rendered, the trial court dismissed and severed Jones's claims against all defendants except Anderson, who had not yet been served. The orders dismissing and severing Jones's claims were final judgments as to those defendants, and as part of her appeal from those judgments, Jones appealed the order denying her motion to recuse or disqualify Judge McMeans. On May 2, 2016, Jones moved to withdraw the appeal, and we accordingly dismissed the appeal at Jones's request. See Jones v. Tran, No. 14-16-00339-CV, 2016 WL 3223719, *1 (Tex. App.-Houston [14th Dist.] June 9, 2016, no pet.) (per curiam) (mem. op.). Our plenary power to review the denial of Jones's recusal motion expired sixty days later. See TEX. R. APP. P. 19.1.
No statute authorizes an interlocutory appeal from an order declaring a person a vexatious litigant and abating proceedings pending the person's compliance with the trial court's order to post security. See, e.g., Diaz v. A.M. Stringfellow Unit, No. 14-15-00253-CV, 2015 WL 1870251, at *1 (Tex. App.—Houston [14th Dist.] Apr. 23, 2015, no pet.) (per curiam, mem. op); Douglas v. Honorable Tex. Bd. of Pardons & Paroles, No. 14-11-00527-CV, 2012 WL 1154367, at *1 (Tex. App.—Houston [14th Dist.] Apr. 5, 2012, no pet.) (mem. op.); Gray v. Kirkwood S. Committee, No. 14-13-00796-CV, 2003 WL 22143595 (Tex. App.—Houston [14th Dist.] Sept. 18, 2003 (per curiam, mem. op.). The trial court's order granting Anderson's vexatious- litigant motion does not dismiss Jones's claims, and the record does not contain a further order of the trial court doing so. Because Jones and Anderson are the only parties remaining in the case, a dismissal of Jones's claims would dispose of all claims and parties in the case and would therefore result in a final judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001).
Under Texas Rule of Appellate Procedure 27.2, "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. We accordingly abate this appeal and remand to the trial court to permit the parties to obtain an order lifting the abatement of proceedings and rendering a final judgment. Appellant shall file an amended notice of appeal from the final judgment. A supplemental clerk's record containing any such order or judgment and the amended notice of appeal shall be filed with this court by January 12, 2018.
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 also will 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