Carol Shaw v. Bishop Airfield Ranch, LLC

Opinion

Order entered December 21, 2022

In The Court of Appeals Fifth District of Texas at Dallas

No. 05-22-00765-CV

CAROL SHAW, Appellant

V.

BISHOP AIRFIELD RANCH, LLC, Appellee

On Appeal from the 354th Judicial District Court Hunt County, Texas Trial Court Cause No. 90347

ORDER

Appellee filed the underlying suit seeking to quiet title to an airstrip and

surrounding land it owns in Hunt County. Appellee asserted its title was affected

by an affidavit appellant filed claiming she had an easement to the airstrip, and it

sought a declaration that the affidavit was invalid. Appellant counterclaimed for

breach of contract, asserting appellee failed to abide by the terms of the easement.

The trial court granted summary judgment in favor of appellee on its claim

to quiet title. In relevant part, the summary judgment order recites as follows: 1. Defendant’s Affidavit Claiming Easement is invalid and illegal under Texas law.

2. Plaintiff’s Petition to Quiet Title is GRANTED and any claim of title in, on, or to the Property that Defendant has or may have in the future should be quieted[.]

The appeal challenges this order.

Contending the order is not appealable because it does not address

appellant’s counterclaim for breach of contract, and no other order does either,

appellee has filed a motion to dismiss the appeal. See Lehmann v. Har-Con Corp.,

39 S.W.3d 191, 195 (Tex. 2001) (subject to mostly statutory exceptions, appeal

may only be taken once all claims have been determined). Appellant responds that

the counterclaim was impliedly denied but asks, to the extent the order may be

ambiguous, that we abate the appeal to allow the trial court to clarify its intention.

See id. at 206; see also Bella Palma, LLC v. Young, 601 S.W.3d 799, 801 (Tex.

2020).

We GRANT appellant’s request and REMAND the cause to the trial court

so it can clarify its intent. If the trial court intended its summary judgment order to

be a final and appealable judgment that disposes of all claims and all parties, it

shall modify the order to make that intention clear. If the trial court did not render a

final judgment, it shall certify so in writing and state what remains pending. The

trial court shall then cause the modified order or certification be included in a supplemental clerk’s record to be filed in the Court no later than February 6,

2023.

We SUSPEND the deadline for filing appellee’s brief and DENY as moot

appellee’s December 15, 2022 unopposed motion to extend time to file its brief.

We DIRECT the Clerk of the Court to send a copy of this order to the

Honorable Keli Aiken, Presiding Judge of the 354th Judicial District Court; Hunt

County District Clerk Susan Spradling; and, the parties.

We ABATE the appeal to allow the trial court an opportunity to comply

with this order. The appeal shall be reinstated and any appropriate new deadlines

shall be set no later than February 15, 2023.

/s/ BILL PEDERSEN, III JUSTICE