Oliver McGee v. Howard University

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-19-00434-CV
________________________
OLIVER MCGEE, APPELLANT
V.
HOWARD UNIVERSITY, APPELLEE
On Appeal from the 72nd District Court
Lubbock County, Texas
Trial Court No. 2017-526,653; Honorable Ruben Gonzalez Reyes, Presiding
February 28, 2020
ORDER OF ABATEMENT AND REMAND
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Oliver McGee, appeals from a judgment issued in favor of Appellee,
Howard University, following a jury trial. Now pending before this court is Appellant’s
Verified, Unopposed Motion to Abate Appeal and In the Alternative Motion for Extension.
We abate the appeal and remand the case to the trial court for further proceedings.
The trial court signed a judgment on September 16, 2019, stating “[t]his judgment
finally disposes of all parties and all claims and is appealable.” However, the judgment
also directed Howard University to file a motion for entry of attorney’s fees to “be
determined by the Court.” Howard University filed that motion on October 14, 2019, but
the trial court has yet to rule on the motion. McGee subsequently filed this appeal.
McGee now requests that we abate all pending appellate deadlines until after the
trial court rules on Howard University’s motion for entry of attorney’s fees. A hearing on
the motion was scheduled for February 27, 2020.
ANALYSIS
The appellate jurisdiction of a court of appeals is generally limited to final
judgments and a few (here inapplicable) statutory exceptions. Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 195 (Tex. 2001). While the judgment entered may enjoy a
presumption of finality for purposes of appeal, the face of the judgment contains
conflicting provisions which place that presumption into question. See North East Indep.
School Dist. v. Aldridge, 400 S.W.2d 893, 897-98 (Tex. 1966). Where a question exists
as to the finality of a judgment rendered after a conventional trial on the merits, then
finality must be resolved by determining the intention of the trial court as gathered from
the language of the decree and the record as a whole, aided on occasion by the conduct
of the parties. Vaughn v. Drennon, 324 S.W.3d 560, 563 (Tex. 2010).
Here, the record contains some indication the trial court may not have intended to
dispose of the entire case; however, based on the finality phrase contained in the
judgment, it is not surprising that McGee filed a notice of appeal. Where an “appellate
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court is uncertain about the intent of the order, it can abate the appeal to permit
clarification by the trial court.” See Lehmann, 34 S.W.3d at 206; TEX. R. APP. P. 27.2
(stating 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). See also Disco Mach. of Liberal Co. v. Payton,
900 S.W.2d 71, 74 (Tex. App.—Amarillo 1995, writ denied) (abating for clarification).
Accordingly, in the interest of conservation of judicial resources, we grant the
motion to abate and remand the case to the trial court. On remand, the trial court shall
proceed to consider this matter and enter an order clarifying whether it intended its
judgment to be a final appealable order on or before April 3, 2020. Upon entry of that
clarifying order, the trial court shall cause a supplemental clerk’s record including that
order to be filed. All appellate deadlines are suspended until the filing of that
supplemental clerk’s record; whereupon the appellate deadlines set forth by the Texas
Rules of Appellate Procedure shall become applicable.
It is so ordered.
Per Curiam
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