Abira Medical Laboratories, LLC D/B/A Genesis Diagnostics/ OMH-Healthedge Holdings, Inc. D/lb/A Omega Healthcare Management Services v. OMH-Healthedge Holdings, Inc. D/lb/A Omega Healthcare Management Services// Cross-Appellee, Abira Medical Laboratories, LLC D/B/A Genesis Diagnostics ( 2023 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00176-CV
Appellant, Abira Medical Laboratories, LLC d/b/a Genesis Diagnostics// Cross-Appellant,
OMH-Healthedge Holdings, Inc. d/lb/a Omega Healthcare Management Services
v.
Appellee, OMH-Healthedge Holdings, Inc. d/lb/a Omega Healthcare Management
Services// Cross-Appellee, Abira Medical Laboratories, LLC d/b/a Genesis Diagnostics
FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-21-001179, THE HONORABLE MAYA GUERRA GAMBLE, JUDGE PRESIDING
O R D E R AND M E M O R A N D U M O P I N I O N
PER CURIAM
This Court is obligated to determine, sua sponte, our own jurisdiction. New York
Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex. 1990) (per curiam). Our
jurisdiction is established exclusively by constitutional and statutory enactments. See, e.g., Tex.
Const. art. V, § 6; Tex. Gov’t Code § 22.220. Unless one of the sources of our authority
specifically authorizes an interlocutory appeal, we only have jurisdiction over an appeal taken
from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).
In the present case, the trial court granted a motion for summary judgment filed
by OMH-Healthedge Holdings, Inc. d/lb/a Omega Healthcare Management Services (Omega).
The summary-judgment order recites that Omega “have and recover from [sic] JUDGMENT
from Abira Medical Laboratories, LLC d/b/a Genesis Diagnostics as follows:
1. Actual damages, after applying all applicable offsets and credits in the amount of
$90,401.49;
2. Pre-judgment interest in the amount of 1.5% per month, totaling $32,232.47 as of
November 22, 2021;
3. Attorneys’ fees, associated expenses, and court costs in the amount to be determined
by the Court in the absence of an agreement by the parties;
4. Post-judgment interest on those sums (actual damages, pre-judgment interest, and
attorneys’ fees) awarded at an annual rate of five percent (5%) from January 6, 2022.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, that Plaintiff is
allowed such writs and processes as may be necessary in the enforcment and collection of
this Judgment.”
In this order, the trial court indicated that Omega was entitled to an award of attorney’s fees,
expenses, and costs, and provided that it would determine the specific amount if the parties failed
to reach an agreement. Because the order did not follow a conventional trial on the merits and
did not dispose of Omega’s claim for attorney’s fees, it was not a final judgment. See McNally v.
Guevara, 52 S.W.3d 195, 196 (Tex. 2001) (per curiam) (holding that summary judgment order
that did not not dispose of claim for attorney’s fees was not final judgment).
When Omega and Abira were unable to reach an agreement on the attorney’s fee
award, Omega filed a pleading titled “Motion to Modify Final Judgment to Include Amount of
Attorneys’ Fees and Costs” to which it attached an affidavit and invoices supporting its request
for $55,215.00 in attorney’s fees and $643 in costs. Rather than filing a motion requesting the
court to make the anticipated determination of the attorney’s fee award, Omega apparently—and
erroneously—believed that the order granting summary judgment was a final judgment that
would need to be “modified” to incorporate an attorney’s fee award. The court denied the
motion to modify the judgment in an order that stated the “motion to modify the Court’s final
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judgment in order to incorporate attorney’s fees into the judgment lacks merit and should be
denied.” It appears the court may have been under the impression that its prior order was final
and that it was denying what it believed was a post-judgment request to modify a final judgment.
In any event, the result was that, although the court had previously ordered that Omega was
entitled to attorney’s fees, it failed to make a determination of any specific amount. The parties
maintain that the trial court’s order constitutes the court’s determination that the attorney’s fee
award should be zero and that the court’s order thereby disposed of all claims and is final.
It does not appear so clear to us. The court’s order did not state that it was awarding “zero”
attorney’s fees, but only that the motion to modify “lacks merit and should be denied.”
The trial court’s failure to award attorney’s fees to Omega despite its previous
order awarding Omega a then-undetermined amount of fees, and despite Omega’s having
submitted evidence sufficient to support an award of some amount of fees, creates uncertainty as
to the trial court’s intentions regarding the attorney’s fee award. Did the trial court intend to
award zero dollars in fees despite having previously determined that Omega was entitled to
them? Or did the trial court determine that it would not “modify” what it believed to be a final
judgment previously rendered in the case? If the former, the judgment would be final and
appealable. If the latter, it would not be final because it never disposed of Omega’s request for
attorney’s fees.
When the trial court’s intentions are uncertain, the Texas Supreme Court has
afforded us the option to abate the appeal to permit the trial court to clarify the order or
judgment. See Lehmann, 39 S.W.3d at 206 (“If the appellate court is uncertain about the intent
of the order, it can abate the appeal to permit clarification by the trial court.”) (citing Tex. R.
App. P. 27.2). We therefore abate this appeal so that the trial court can clarify its intent
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regarding disposition of Omega’s claim for attorney’s fees. A supplemental clerk’s record
containing the trial court’s clarification is due in this Court on or before 45 days from the date of
this opinion. The appeal will be reinstated upon receipt of the supplemental clerk’s record.
It is ordered on June 16, 2023.
Before Justices Baker, Theofanis, and Jones*
Abated and Remanded
Filed: June 16, 2023
*
Before J. Woodfin Jones, Chief Justice (Retired), Third Court of Appeals, sitting by assignment.
See Tex. Gov’t Code § 74.003(b).
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