Opinion
NO. 14-17-00071-CV
06-09-2017
On Appeal from the County Court at Law Austin County, Texas
Trial Court Cause No. 14PR-9813
ABATEMENT ORDER
Plaintiff/appellant Phillip R. Schlittler filed his notice of appeal on January 20, 2017. It appears no final judgment has been signed in this case.
On June 22, 2016, the trial court signed an order granting defendant/appellee Shirley Meyer's motion for summary judgment ("Order Granting Summary Judgment"). The Order Granting Summary Judgment contains no decretal language (e.g. "ordered, adjudged, and decreed").
Meyer filed a notice of nonsuit of her counterclaims on July 1, 2016. On July 11, 2016, the trial court signed an order "confirming" Meyer's notice of nonsuit and dismissing her counterclaims without prejudice and taxing all court costs incurred with regard to the counterclaims against Meyer ("Order Dismissing Counterclaims"). The Order Dismissing Counterclaims does not address Schlittler's claims.
On August 9, 2016, Schlittler filed a motion for reconsideration of the Order Granting Summary Judgment. The trial court denied the motion for reconsideration on December 22, 2016 ("Order Denying Reconsideration"). The Order Denying Reconsideration states that the trial court "no longer has jurisdiction of this case." It does not contain any decretal language.
"An order that merely grants a motion for judgment is in no sense a judgment itself. It adjudicates nothing." Naaman v. Grider, 126 S.W.3d 73, 74 (Tex. 2003) (per curiam); accord In re Wilmington Trust, N.A., No. 14-17-00074-CV, ___ S.W.3d ___, 2017 WL 946759, *2 (Tex. App.—Houston [14th Dist.] Mar. 9, 2017, orig. proceeding).
None of the Order Granting Summary Judgment, the Order Dismissing Counterclaims, or the Order Denying Reconsideration fully disposes of Schlittler's claims. Therefore, it appears no final judgment has been signed in this case.
The Texas Supreme Court has advised that if an appellate court is uncertain about a trial court's intent 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 abate this appeal and remand to the trial court to permit the trial court to clarify its intent and the parties to obtain a final judgment if necessary. A supplemental clerk's record containing any such order or judgment shall be filed with the clerk of this court by July 13, 2017.
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