In the Interest of S.A.M.

Court of Appeals of Texas

In the Interest of S.A.M.

305 S.W.3d 837, 2010 Tex. App. LEXIS 860

CourtCourt of Appeals of Texas

DecidedJanuary 28, 2010

DocketNo. 14-08-01068-CV

StatusPublished

Cited by1 cases

This text of 305 S.W.3d 837 (In the Interest of S.A.M.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In the Interest of S.A.M., 305 S.W.3d 837, 2010 Tex. App. LEXIS 860 (Tex. Ct. App. 2010).

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ABATEMENT ORDER

This is an appeal from an order signed August 5, 2008. Based on the record before us, ambiguity exists as to whether the order is final and appealable.

The Texas Supreme Court has advised that 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 eoui’t. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex.2001). Texas Rule of Appellate Procedure 27.2 provides as follows:

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.

The August 5, 2008 order does not clearly state whether petitioner Susan Doyle lacks standing under any potential basis that was raised in the tidal court or could have been raised in the trial court. Additionally, the order does not expressly dismiss Doyle’s substantive claims based upon lack of standing or any other grounds. Accordingly, we order the case abated and remand it to the trial court for a period of thirty days so the trial court can sign an order clarifying its intent. The order should (1) explain whether the trial court intended its August 5, 2008 order to be a final and appealable judgment that disposes of all claims and all parties, and, if it so intended, (2) modify the August 5, 2008 order to make that intention clear.

A supplemental clerks record containing the trial court’s clarifying order(s) shall be filed with the clerk of this court on or before March 1, 2010.

The appeal is abated, treated as a closed case, and removed from this court’s active docket. The appeal will be reinstated on this court’s active docket when the supplemental clerk’s record is filed in this court. The court will also consider an appropriate motion to reinstate the appeal filed by either party, or the court may reinstate the appeal on its own motion. It is the responsibility of any party seeking reinstatement to request a hearing date from the trial court and to schedule a hearing, if a hearing is required, in compliance with this court’s order. If the parties do not [839]*839request a hearing, the court coordinator of the trial court shall set a hearing date and notify the parties of such date.

It is so ORDERED.

/s/ Justice John S. Anderson

FROST, J., Dissenting.

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ABATEMENT ORDER

This is an appeal from an order signed August 5, 2008. Based on the record before us, ambiguity exists as to whether the order is final and appealable.

The Texas Supreme Court has advised that 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 eoui’t. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex.2001). Texas Rule of Appellate Procedure 27.2 provides as follows:

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.

The August 5, 2008 order does not clearly state whether petitioner Susan Doyle lacks standing under any potential basis that was raised in the tidal court or could have been raised in the trial court. Additionally, the order does not expressly dismiss Doyle’s substantive claims based upon lack of standing or any other grounds. Accordingly, we order the case abated and remand it to the trial court for a period of thirty days so the trial court can sign an order clarifying its intent. The order should (1) explain whether the trial court intended its August 5, 2008 order to be a final and appealable judgment that disposes of all claims and all parties, and, if it so intended, (2) modify the August 5, 2008 order to make that intention clear.

A supplemental clerks record containing the trial court’s clarifying order(s) shall be filed with the clerk of this court on or before March 1, 2010.

The appeal is abated, treated as a closed case, and removed from this court’s active docket. The appeal will be reinstated on this court’s active docket when the supplemental clerk’s record is filed in this court. The court will also consider an appropriate motion to reinstate the appeal filed by either party, or the court may reinstate the appeal on its own motion. It is the responsibility of any party seeking reinstatement to request a hearing date from the trial court and to schedule a hearing, if a hearing is required, in compliance with this court’s order. If the parties do not [839]*839request a hearing, the court coordinator of the trial court shall set a hearing date and notify the parties of such date.

It is so ORDERED.

/s/ Justice John S. Anderson

FROST, J., Dissenting.

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