Alberto R. Garza and Leticia I. Garza v. Burch Construction, Inc. ( 2015 )

NUMBER 13-15-00052-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
ALBERTO R. GARZA, AND
LETICIA GARZA, Appellants,
v.
BURCH CONSTRUCTION, Appellee.
____________________________________________________________
On appeal from the 92nd District Court
of Hidalgo County, Texas.
____________________________________________________________
ORDER OF ABATEMENT
Before Justices Rodriguez, Garza, and Longoria
Order Per Curiam
Appellants Alberto and Leticia Garza filed suit against Burch and several other
parties for damages related to the flooding of the Garzas’ home. On April 15, 2014,
Burch filed a counterclaim for attorney’s fees. See TEX. CIV. PRAC. & REM. CODE ANN. §
38.001 (West, Westlaw through Chapter 46, 2015 R.S.). On May 16, 2014, the trial court
granted a summary judgment disposing of the Garzas’ individual claims against Burch.
On November 25, 2014, the trial court granted Burch’s motion to sever appellant’s claims
against it and Burch’s counterclaim for attorneys’ fees. Burch argues that the summary
judgment that the Garzas are appealing is not final because it did not dispose of all claims.
See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001) (“A judgment that finally
disposes of all remaining parties and claims, based on the record in the case, is final.”).
Specifically, Burch asserts that the summary judgment disposed of the Garzas’ claims
against Burch but did not dispose of Burch’s counterclaim for attorney’s fees.
We agree with Burch that the judgment would not be final if it is true that the trial
court did not dispose of the counterclaim for attorney’s fees. See McNally v. Guevara,
52 S.W.3d 195, 196 (Tex. 2001) (holding that a summary judgment that did not dispose
of a defendant’s counterclaim for attorney’s fees was not a final, appealable judgment).
However, we are unclear as to the finality of the summary judgment. Nothing in the
record seems to indicate that the trial court intended to deny defendant’s claim for
attorney’s fees but the order does appear like a final order. See id.
The Texas Supreme Court has held that this type of case can be abated. See
Lehmann, 39 S.W.3d at 200; id. Texas Rule of Appellate Procedure 27.2 provides that
appellate courts “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 for the trial court to sign an order clarifying its intent. The order should: (1)
explain whether the court intended its order of May 16, 2014 to be a final and appealable
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judgment that disposes of all claims and all parties and, if so, (2) modify the May 16, 2014
order to make that intention clear and explicitly dispose of the counterclaim for attorneys’
fees. See Harrison v. TDCJ-ID, 134 S.W.3d 490, 492 (Tex. App.—Waco 2004, order)
(per curiam) (“If the court intended to render a final judgment, then it should enter an
appropriate order to effectuate its intent.”). However, if the trial court did not intend to
dispose of Burch’s counterclaim for attorney’s fees, then that claim needs to be resolved
before this appeal can proceed. See McNally, 52 S.W.3d at 196. A supplemental
clerk’s record containing an additional or modified order disposing of the counterclaim
shall be filed with the clerk of this court within thirty days of the date of this order. If the
trial court elects to hold a hearing, a reporter’s record shall be filed with the clerk by the
same date. If the trial court needs more time, it should notify this Court before the end
of the thirty day period. The appeal will be reinstated only on further order of this Court.
It is so ORDERED.
PER CURIAM
Delivered and filed the
1st day of September, 2015.
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