Cliff Carlton Rice v. Bryan Collier ( 2021 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Cliff Carlton Rice v. Bryan Collier
Appellate case number: 01-19-00843-CV
Trial court case number: 91507-I
Trial court: 412th District Court of Brazoria County
According to the docket sheet and case summary included in the clerk’s record, the
trial court signed an order dismissing the above cause on October 2, 2019. Appellant Cliff
Carlton Rice filed a notice of appeal of the trial court’s “order of dismissal” on October 28,
2019. In their appellate briefing, both parties treat the October 2, 2019 order of dismissal
as a final order purporting to dismiss appellant’s claims under Chapters 13 and 14 of the
Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE
§§ 13.001(b)(2) (allowing courts to consider whether “claim has no arguable basis in law
or in fact” in determining whether action is subject to dismissal as “frivolous or
malicious”), 14.003(b)(2) (allowing same consideration for dismissal of claims in inmate
litigation).
Although the clerk’s record and the parties’ briefing suggest the trial court case was
dismissed pursuant to a final, appealable order dated October 2, 2019, neither the clerk’s
record filed with this Court on November 15, 2019, nor the first supplemental clerk’s
record filed on January 3, 2020, contain a copy of any order of dismissal signed by the trial
court on that date.1 Consequently, on February 4, 2021, this Court ordered the trial court
clerk to file a second supplemental clerk’s record including the appealed-from order. See
1
Only the correspondence from the trial court coordinator informing the parties that an order
of dismissal was signed is included in the clerk’s record and supplemental clerk’s record,
not the order of dismissal itself. This is in contrast to the interlocutory orders dismissing
the claims against some, but not all, of the defendants under Chapters 13 and 14 of the
Texas Civil Practice and Remedies Code—namely, the interlocutory orders dismissing the
claims against Michael Butcher and Bryan Collier.
TEX. R. APP. P. 34.5(a)(5) (instructing that clerk’s record must include “the court’s
judgment or other order that is being appealed”).
Pursuant to this Court’s order, a second supplemental clerk’s record was filed on
February 24, 2021. The only order from the trial court included in the second supplemental
clerk’s record is an Order on Notice of Intent to Dismiss, signed by the trial court on
October 2, 2019 and filed with the district clerk on October 7, 2019. The second
supplemental clerk’s record also contains a Certificate of Fact, signed by the district clerk,
stating that the district clerk has “researched the file and records of cause No. 91507-I” and
that the “Order on Notice of Intent to Dismiss filed on 10/07/2019 is the appealable order.”
Contrary to the docket entry and appellate briefing, however, the Order on Notice of Intent
to Dismiss does not purport to dismiss any claims. Rather, the Order on Notice of Intent to
Dismiss indicates that the action required by the notice—service on all defendants not yet
served—“was accomplished by the required date,” and “[t]he case [wa]s therefore
retained” by the trial court.
This Court generally has jurisdiction only over appeals from final judgments and
specific interlocutory orders that the legislature has designated as appealable orders. See
CMH Homes v. Perez, 340 S.W.3d 444, 447–48 (Tex. 2011); see also TEX. CIV. PRAC. &
REM. CODE § 51.014. The appellate record here contains conflicting information about
whether there is a final, appealable order that disposes of all issues and all parties, and
therefore, this Court cannot determine its jurisdiction. See Lehmann v. Har-Con Corp., 39
S.W.3d 191, 195 (Tex. 2001) (noting general rule that appellate courts have jurisdiction
only over appeals from final judgments).
Accordingly, we abate the appeal and remand to the trial court for further
proceedings. The trial court shall conduct a hearing within sixty (60) days of the date of
this Order at which a representative of the Office of the Attorney General shall be present
in person or via video conference. Appellant, who is pro se, shall also be present for the
hearing or, if appellant is incarcerated, at the trial court’s discretion, appellant may
participate in the hearing by closed-circuit video teleconferencing. The court coordinator
of the trial court shall set a hearing date and notify the parties. The hearing shall be recorded
by a court reporter or court recorder.
We direct the trial court to:
1) determine whether the October 2, 2019 Order of Notice of Intent to Dismiss
is the order being appealed;
2) clarify whether the trial court meant to dismiss the entire trial court litigation
against each and every defendant for want of prosecution, and if so, have a
supplemental clerk’s record filed containing a final, appealable order;
3) if the trial court did not intend to dismiss the entire trial court litigation
against each and every defendant for want of prosecution, enter written
findings of fact and conclusions of law to that effect; and
4) if there is a separate final, appealable order, have a supplemental clerk’s
record filed containing that final, appealable order.
The trial court clerk is directed to file a supplemental clerk’s record containing any
order referenced above, and any other findings, recommendations, and orders of the trial
court with this Court no later than seventy-five (75) days from the date of this order. See
TEX. R. APP. P. 34.5(c)(2). The court reporter, or recorder, is directed to file the reporter’s
record of the hearing within seventy-five (75) days of the date of this order.
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 and reporter’s record of the hearing are filed with the Clerk of the 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. To the extent the trial court
determines there is no final, appealable order in the underlying trial court litigation, we will
also consider a motion to dismiss the appeal filed by the parties.
It is so ORDERED.
Judge’s signature: /s Amparo Guerra
Acting individually
Date: April 1, 2021