Cody Howard v. Lacy Kimball, Individually and D/B/A Lacy Kimball Law

• Court: Court of Appeals of Texas
• Decided: January 15, 2025
• Docket: 07-24-00388-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-24-00388-CV

CODY HOWARD, APPELLANT

V.

LACY KIMBALL, INDIVIDUALLY AND D/B/A LACY KIMBALL LAW, APPELLEE

On Appeal from the 43rd District Court Parker County, Texas Trial Court No. CV24-0589, Honorable Craig Towson, Presiding

January 15, 2025 ORDER OF ABATEMENT AND REMAND Before PARKER and DOSS and YARBROUGH, JJ.

Appellant, Cody Howard, appeals from the Order on Plea to the Jurisdiction

wherein the trial court “overruled” the plea to the jurisdiction of Appellee, Lacy Kimball,

and “dismissed” the suit.1 Because of our concern that this order lacks finality and

appealability, we abate the appeal and remand this cause to the trial court for further

proceedings.

1 This appeal was originally filed in the Second Court of Appeals and was transferred to this Court

by a docket-equalization order of the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001. Howard and CMH Group, LLC sued Kimball for legal malpractice. Kimball

answered the suit and filed a plea to jurisdiction, a motion to dismiss pursuant to Rule of

Civil Procedure 91a, and a motion for sanctions under Section 10 of the Civil Practice and

Remedies Code and Rule 13 of the Rules of Civil Procedure. Thereafter, CMH Group

filed a notice of nonsuit of its claims. The record, however, does not include a trial court

order granting the nonsuit. On June 24, 2024, the trial court issued an order denying

Kimball’s Rule 91a motion to dismiss and an order overruling her plea to the jurisdiction.

Though the Order on Plea to the Jurisdiction purports to overrule Kimball’s plea to the

jurisdiction, it states that “[t]he suit is dismissed.” Howard appealed the order.

Generally, with few statutory exceptions, an appeal may be taken only from a final

judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When there has

been no conventional trial on the merits, an order or judgment is not final for purposes of

appeal unless it actually disposes of every pending claim and party or it clearly and

unequivocally states that it finally disposes of all claims and all parties. Id. at 205. 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. Id. at 206.

The Order on Plea to the Jurisdiction does not contain unequivocal finality

language as expressed in Lehmann nor does it dispose of all parties and claims.

Lehmann, 39 S.W.3d at 205 (“Language that the plaintiff take nothing by his claims in the

case, or that the case is dismissed, shows finality if there are no other claims by other

parties . . .”). First, there is no trial court order nonsuiting CMH Group’s claims against

Kimball. See In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997) (per curiam) (“Appellate

timetables do not run from the date a nonsuit is filed, but rather from the date the trial 2 court signs an order of dismissal.”). Second, the Order on Plea to the Jurisdiction does

not dispose of the motion for sanctions sought by Kimball against Howard and CMH

Group. See Crites v. Collins, 284 S.W.3d 839, 841 (Tex. 2009) (holding that there was

no final judgment where the order did not unequivocally express an intent to dispose of

all claims and all parties and did not resolve a pending motion for sanctions.).

Without a final judgment for review, this appeal is premature and we are without

appellate jurisdiction. As an alternative to dismissal, however, we may abate a premature

appeal to allow the trial court to cure a jurisdictional defect, particularly when only the

ministerial act of making a judgment final remains. See TEX. R. APP. P. 27.2; Iacono v.

Lyons, 6 S.W.3d 715, 717 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (abating appeal

when trial court needed only to act on pending notice of nonsuit).

Consequently, we abate this appeal and remand the cause to the trial court to

clarify whether the Order on Plea to the Jurisdiction is a final judgment and, if necessary,

to permit the parties to obtain an order disposing of all claims and parties. See TEX. R.

APP. P. 27.2 (“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.”), 44.4(b). A supplemental clerk’s

record containing the trial court’s clarifying order, and any other necessary orders, shall

be filed with the Clerk of this Court by February 14, 2025.

It is so ordered.

Per Curiam