L&W Supply Corporation D/B/A Building Specialties v. Thomas Kizziah, Individually

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-20-00198-CV
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L&W SUPPLY CORPORATION D/B/A BUILDING SPECIALTIES,
Appellant
V.
THOMAS KIZZIAH, INDIVIDUALLY, Appellee
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On Appeal from the 172nd District Court
Jefferson County, Texas
Trial Cause No. E-204043
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ORDER
On July 17, 2020, the trial court signed an order denying the plaintiff’s motion
for summary judgment and an order granting the defendant’s motion for summary
judgment. Neither order includes a statement that, “This judgment is final and
disposes of all parties and all claims and is appealable.” Additionally, the order
granting the defendant’s motion for summary judgment does not expressly dispose
of the plaintiff’s claims, for example by stating that L&W Supply Corporation takes
nothing on its claims against Thomas Kizziah. “An order that merely grants a motion
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for judgment is in no sense a judgment itself. It adjudicates nothing.” Naaman v.
Grider, 126 S.W.3d 73, 74 (Tex. 2003). “If the appellate court is uncertain about the
intent of the order, it can abate the appeal to permit clarification by the trial court.”
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001). “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
On our own motion, we abate the appeal and remand the cause to the trial
court. On remand, the trial court shall give notice to the parties and counsel and
supplement the record to indicate whether it rendered a final judgment on July 17,
2020. If the trial court intended to render a final disposition of all parties and all
claims, it shall modify the Order of July 17, 2020 to state that intent clearly and
unequivocally. A supplemental clerk’s record containing the order clarifying the trial
court’s intent regarding finality shall be filed with the clerk of this Court on or before
October 31, 2022. The appeal will be reinstated without further order of this Court
when the supplemental clerk’s record is filed with the Court of Appeals.
ORDER ENTERED September 29, 2022.
PER CURIAM
Before Golemon, C.J., Horton and Johnson, JJ.
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