Allied Collision Center Inc. v. Ewemade Ozigbo ( 2016 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Allied Collision Center Inc. v. Ewemade Ozigbo
Appellate case number: 01-15-01015-CV
Trial court case number: 2014-37834
Trial court: 215th District Court of Harris County
Generally, an appeal may be taken only from a final judgment. Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment is final for purposes of appeal if it disposes
of all pending parties and claims in the record, except as may be necessary to carry out the
decree. Id. One reason why an order may not constitute a final judgment for these purposes is if
it fails to resolve a request for attorney’s fees. E.g., Farm Bureau Cty. Mut. Ins. Co. v. Rogers,
455 S.W.3d 161, 162 (Tex. 2015) (per curiam).
The parties to this appeal contend that the trial judge entered final judgment by means of
a document entitled “Findings of Fact and Conclusions of Law.” Findings of fact should not be
recited in a judgment; they should be filed with the clerk of the court as a document or
documents separate and apart from the judgment. TEX. R. CIV. P. 299a. The presence of fact
findings does not necessarily mean the document is not a final judgment.
The final section of this document states:
III. JUDGMENT ORDERED
Judgment shall be entered against Defendant, in favor of Plaintiff, for
damages, multiple damages, attorney’s fees, and costs in the amount of Seven-
Thousand-Nine Hundred-Two and 99/100 Dollars ($7,902.99) calculated as
follows:
1. $2,634.23 in actual damages;
2. $5,268.46 in multiple damages pursuant to the Texas Deceptive
Trade Practices Act; and
3. Costs and attorney’s fees as allowed by law.
The parties agree this is a final judgment, but that is inconsistent with their appellate
arguments about attorney’s fees. Appellant argues for a reversal of the fees award. Since the
purported final judgment makes no award of a specific non-zero amount of fees, the fact that
appellant challenged the fee award suggests that appellant anticipates some further order
awarding “Costs and attorney’s fees as allowed by law” referenced in the order. Likewise,
appellee contends that she was awarded attorney’s fees, but the amount has not yet been
determined. The trial court’s order could be read as awarding zero attorney’s fees, but the parties
apparently do not read it that way, instead arguing based on an implied assumption that the order
is not final as to the issue of attorney’s fees.
If the appellate court is uncertain about the finality of a purported judgment, it can abate
the appeal to permit clarification by the trial court. Lehmann, 39 S.W.3d at 206 (citing TEX. R.
APP. P. 27.2).
Accordingly, this appeal is abated and removed from this Court’s active docket to permit
the trial court to clarify its order. See Lehmann, 39 S.W.3d at 191. The order may be modified so
as to be made final. See TEX. R. APP. P. 27.2. Any such modified order and all proceedings
related to it may be included in a supplemental record. Id. If no such record is filed within 60
days of the date of this order, the parties shall file a status report with the clerk of this court.
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 a supplemental clerk’s
record containing the trial court’s ruling is filed in this Court.
It is so ORDERED.
Judge’s signature: /s/ Michael Massengale
Acting for the Court
Panel consists of Justices Massengale, Brown, and Huddle
Date: December 23, 2016