West I-10 Volunteer Fire Department v. Harris County Emergency Services District No. 48

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: West I-10 Volunteer Fire Department v. Harris County
Emergency Services District No. 48
Appellate case number: 01-17-00038-CV
Trial court case number: 2015-38121
Trial court: 215th District Court of Harris County
On January 13, 2017, appellant, West I-10 Volunteer Fire Department, filed a
notice of appeal from the trial court’s interlocutory order, signed on December 15, 2016,
granting plaintiff’s traditional and no-evidence motion for summary judgment and order
of final judgment. See TEX. R. APP. 26.1(b). This Court’s February 9, 2017 Order had
granted appellant’s motion for a 30-day extension of time to file evidence of payment of
the appellate record fees because it claimed that the order was not final, but that the trial
court would soon rule on Harris County’s motion to sever and for a new trial.
On March 7, 2017, appellant filed this motion to abate appeal until May 12,
2017, because it intends to file a motion for new trial of the final judgment, signed
on February 13, 2017, which would extend appellant’s appellate deadline. See TEX.
R. APP. P. 26.1(a). Although the clerk’s record has yet to be filed, if the trial court has
signed a final, appealable judgment which replaced the December 15, 2016 interlocutory
order, “the appellate court must treat the appeal as from the subsequent . . . judgment and
may treat actions relating to the appeal of the first order . . . as relating to the appeal of
the subsequent . . . judgment.” TEX. R. APP. P. 27.3. This subsequent judgment “may be
included in the original or supplemental record,” but “any party may nonetheless appeal
from the subsequent . . . judgment.” Id.
Accordingly, appellant’s motion is granted, and we abate the appeal and remand
to permit the trial court to clarify whether the December 15, 2016 order is final and, if
not, to permit appellant to obtain an order disposing of its motion for new trial, if
any, regarding the February 13, 2017 final judgment, or to file a new appeal. See
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001); (citing TEX. R. APP. P. 27.2)
(“If the appellate court is uncertain about the intent of the order, it can abate the appeal
to permit clarification by the trial court.”); TEX. R. APP. P. 27.3. An original clerk’s
record including, among other documents, any final judgment or order, shall be filed by
the district clerk by May 12, 2017. If an original clerk’s record is not filed with this
Court by May 12, 2017, and no extension is requested by the district clerk, appellant shall
promptly notify this Court of the status of the proceedings within ten days of this
deadline.
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 original
clerk’s record is filed in this Court. The Court will also consider a motion to reinstate the
appeal filed by either party, or the Court may reinstate the appeal on its own motion. It
is the responsibility of any party seeking abatement to request a hearing date from the trial
court and to schedule a hearing, if a hearing is required, in compliance with this Court’s
order. If the parties do request a hearing, the trial court coordinator shall set a hearing
date and notify the parties of such date.
It is so ORDERED.
Judge’s signature: /s/ Laura C. Higley
 Acting individually Acting for the Court
Date: March 14, 2017