Kenneth Gibussa v. Sylvia Nyaucho, Benta Okweso Cornel and Lamech Hamisi

COURT OF APPEALS
SANDEE BRYAN MARION FOURTH COURT OF APPEALS DISTRICT KEITH E. HOTTLE,
CHIEF JUSTICE CADENA-REEVES JUSTICE CENTER CLERK OF THE
REBECA C. MARTINEZ 300 DOLOROSA, SUITE 3200 COURT
PATRICIA O. ALVAREZ SAN ANTONIO, TEXAS 78205-3037
LUZ ELENA D. CHAPA WWW.TXCOURTS.GOV/4THCOA.ASPX TELEPHONE
IRENE RIOS (210) 335-2635
BETH WATKINS
LIZA A. RODRIGUEZ FACSIMILE NO.
JUSTICES (210) 335-2762
February 4, 2019
Lamech Hamisi Mary Angie Garcia
11925 Luckey River Bexar County District Clerk
San Antonio, TX 78252 101 W. Nueva, Suite 216
San Antonio, TX 78205
Kenneth Gibussa * DELIVERED VIA E-MAIL *
6422 Palmetto Way
San Antonio, TX 78253 Honorable Norma Gonzales
Judge, 131st District Court
Marisa Aragon 100 Dolorosa St, 2nd Fl
Caritas Legal Services San Antonio, TX 78205-3028
1801 W. Cesar Chavez Blvd. * DELIVERED VIA E-MAIL *
San Antonio, TX 78207
* DELIVERED VIA E-MAIL *
RE: Court of Appeals Number: 04-18-00753-CV
Trial Court Case Number: 2016CI05422
Style: Kenneth Gibussa
v.
Sylvia Nyaucho, Benta Okweso Cornel and Lamech Hamisi
Enclosed please find the order which the Honorable Court of Appeals has
issued in reference to the above styled and numbered cause.
If you should have any questions, please do not hesitate to contact me.
Very truly yours,
KEITH E. HOTTLE,
Clerk of Court
_____________________________
Rosa Gonzalez
Deputy Clerk, Ext. 53855
cc: Delcine Benavides (DELIVERED VIA E-MAIL)
Evelyn Martinez Huron (DELIVERED VIA E-MAIL)
Fourth Court of Appeals
San Antonio, Texas
February 4, 2019
No. 04-18-00753-CV
Kenneth GIBUSSA,
Appellant
v.
Sylvia NYAUCHO, Benta Okweso Cornel and Lamech Hamisi,
Appellees
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CI05422
Honorable Norma Gonzales, Judge Presiding
ORDER
On October 16, 2018, appellant Kenneth Gibussa filed a notice of appeal seeking to
appeal a judgment or order signed on July 24, 2018. The clerk’s record was filed in this appeal
on December 17, 2018.
The clerk’s record reveals the following. On December 21, 2017, Gibussa filed his first
amended petition naming three defendants: Sylvia Nyaucho, Benta Okweso Cornel, and Lamech
Hamisi. All three defendants filed answers. On June 29, 2018, two of the named defendants —
Sylvia Nyaucho and Benta Okweso Cornel — filed a no evidence motion for summary
judgment. On July 24, 2018, the trial court signed an order granting the motion which is the
order Gibussa seeks to appeal.
After reviewing the clerk’s record, this court determined the summary judgment order
Gibussa seeks to appeal appears to be interlocutory because it does not dispose of the claims
against Lamech Hamisi, and no severance order appears in the record. A summary judgment
that does not dispose of all parties and causes of action is not final and appealable. Lehmann v.
Har–Con Corp., 39 S.W.3d 191, 192–93 (Tex. 2001). Accordingly, we ordered Gibussa to show
cause in writing why this appeal should not be dismissed for lack of jurisdiction.
Gibussa filed a written response to this court’s show cause order, stating he tried to take
actions to proceed with his claims against Lamech Hamisi, but the trial court clerk and the
“defendant attorney” insisted the underlying cause was “dismissed” and “closed.” “If the
appellate court is uncertain about the intent of [a summary judgment] order, it can abate the
appeal to permit clarification by the trial court.” Id. at 206. Because the order signed by the trial
court appears to be interlocutory but the trial court clerk appears to be providing advice to the
contrary, this appeal is ABATED to the trial court for further clarification. The trial court is
ORDERED to provide written clarification to this court no later than two weeks from the date of
this order regarding the status of Gibussa’s claims against Lamech Hamisi.
_________________________________
Sandee Bryan Marion, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 4th day of February, 2019.
___________________________________
KEITH E. HOTTLE,
Clerk of Court