Nathaniel Shelton and Marcia Shelton v. Alfred Kalbow, as Trustee of Alfred Martial Trust

Abatement Order filed October 23, 2014
In The
Fourteenth Court of Appeals
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NO. 14-14-00710-CV
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NATHANIEL SHELTON AND MARCIA SHELTON, Appellants
V.
ALFRED KALBOW, AS TRUSTEE OF ALFRED MARTIAL TRUST, ET.
AL., Appellees
On Appeal from the 335th District Court
Washington County, Texas
Trial Court Cause No. 35589
ABATEMENT ORDER
This is an appeal from a judgment signed July 29, 2014. Appellee Alfred
Kalbow, trustee of the Alfred Kalbow Marital Trust, filed a motion to dismiss for
want of jurisdiction. It appears from the record that the judgment may not be final.
See McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001) (judgment that did not
dispose of attorney’s fees was not an appealable judgment, and party’s omission of
attorney’s fees in motion for summary judgment did not waive the claim).
The Texas Supreme Court has advised that if an appellate court is uncertain
about the intent of an order to finally dispose of all claims and parties, it can abate
the appeal to permit clarification by the trial court. See Lehmann v. Har-Con Corp.,
39 S.W.3d 191, 206 (Tex. 2001). Texas Rule of Appellate Procedure 27.2 provides
as follows:
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.
Tex. R. App. P. 27.2.
Accordingly, we order the case abated and remanded to the trial court for a
period of thirty days so that the trial court may clarify whether the partial summary
judgment became final when the severance order was signed, and to permit the
parties to obtain an order or orders disposing of attorneys’ fees, if necessary. A
supplemental clerk’s record containing the trial court’s clarifying order(s) shall be
filed with the clerk of this court on or before December 1, 2014.
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 is filed in this 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.
It is so ORDERED.
PER CURIAM