Aide Agnew v. Eqyinvest Owner II Ltd., LLP, HEB Beverage Company LLC, HEB LP (Formerly HEB Grocery Co., LP) HEBCO GP, LLC, and HEB Inc. ( 2024 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-23-00241-CV
AIDE AGNEW, APPELLANT
V.
EQYINVEST OWNER II LTD., LLP.; HEB BEVERAGE COMPANY LLC.; HEB LP
(FORMERLY HEB GROCERY CO., LP.); HEBCO GP, LLC.; AND HEB INC., APPELLEES
On Appeal from the 45th District Court
Bexar County, Texas
Trial Court No. 2021-CI-13420, Honorable Cynthia Marie Chapa, Presiding
May 21, 2024
MEMORANDUM OPINION
Before PARKER and DOSS and YARBROUGH, JJ.
Appellant, Aide Agnew, appeals from the trial court’s Order Granting Defendant’s
Motion for Summary Judgment.1 We dismiss the appeal for want of jurisdiction.
In 2021, Agnew sued Appellees, Eqyinvest Owner II Ltd., LLP; HEB Beverage
Company LLC.; HEB LP (formerly HEB Grocery Co., LP.); HEBCO GP, LLC.; and HEB
1 Originally appealed to the Fourth Court of Appeals, this appeal was transferred to this Court by
the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001.
Inc., for damages after allegedly slipping and falling in an HEB grocery store. On August
16, 2021, Agnew filed a notice nonsuiting her claims against Eqyinvest Owner II Ltd., LLP.
The trial court, however, never signed an order granting the nonsuit. “H-E-B, LP”
answered the suit, asserting that Agnew incorrectly named all HEB defendants, and
moved for summary judgment on all claims. On May 3, 2023, the trial court signed the
Order Granting Defendant’s Motion for Summary Judgment in favor of “H-E-B, LP.” The
order, however, did not include any language expressly adjudicating the rights of the
parties involved.
Generally, with statutory exceptions, an appeal may be taken only from a final
judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When there has
been no conventional trial on the merits, an order or judgment is not final for purposes of
appeal unless it actually disposes of every pending claim and party or it clearly and
unequivocally states that it finally disposes of all claims and all parties. Id. at 205.
Here, the trial court’s Order Granting Defendant’s Motion for Summary Judgment
is not a final, appealable order. It bears no language indicative of finality and the record
does not reflect that all of Agnew’s claims against Appellees have been pursued,
dismissed, or resolved. The summary judgment order does not address Agnew’s nonsuit
of Eqyinvest Owner II Ltd., LLP. See Iacono v. Lyons, 6 S.W.3d 715, 716–17 (Tex. App.—
Houston [1st Dist.] 1999) (“Because the trial court did not sign either an order granting
the nonsuit or a judgment memorializing the nonsuit, the partial summary judgment is not
final.”). Nor does it address the disposition of Agnew’s claims against the remaining HEB
Appellees. Finally, the summary judgment order lacks decretal language expressly
adjudicating the rights of the parties involved. See Keenan v. Robin, No. 07-21-00190-
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CV, 2022 Tex. App. LEXIS 1225, at *3–4 (Tex. App.—Amarillo Feb. 22, 2022, no pet.)
(per curiam) (mem. op.) (holding that a summary judgment order lacking decretal
language is not a final judgment because it does “not adjudicate the rights involved or
evince a final result recognized by the law”).
As an alternative to dismissing the appeal for want of jurisdiction, we remanded
the cause to the trial court on March 11, 2024, for the trial court to issue such further
orders necessary to create a final, appealable order or judgment. See TEX. R. APP. P.
27.2 (“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.”). In our order, we admonished the parties that
unless a final, appealable order or judgment was included in a supplemental clerk’s record
and filed with the Clerk of this Court on or before April 10, 2024, the appeal would be
reinstated and dismissed for want of jurisdiction. See TEX. R. APP. P. 42.3(a).
No supplemental clerk’s record was filed by this deadline. By letter of April 17,
2024, we directed the parties to provide us with a status of the remand proceedings by
May 1; again admonishing that if a final, appealable order or judgment was not received,
the appeal would be reinstated and dismissed for want of jurisdiction without further
notice. By letter, HEB provided the following response:
“. . . HEB drafted a proposed final judgment for review; it circulated the same
to Agnew’s counsel on March 28, 2024. Agnew’s counsel represented by
telephone that he would review the same, but did not communicate with the
undersigned again. Because Agnew’s counsel did not indicate agreement
or disagreement as to the form or substance of the proposed judgment,
HEB’s trial counsel contacted the trial court regarding a hearing for
consideration and entry of a signed final judgment. HEB has not yet been
able to obtain a hearing date, and Agnew’s counsel has not communicated
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with the undersigned as to his hearing availability or intent regarding the
appeal, so no new judgment has yet been signed.”
Agnew, however, did not respond to the Court’s inquiry.
Accordingly, for the reasons expressed herein, we reinstate the appeal and
dismiss it for want of jurisdiction. The appeal is dismissed.
Per Curiam
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