Jason Barger v. DGL Group, Ltd. D/B/A Hover-1, and John Does 1-100

• Court: Court of Appeals of Texas
• Decided: January 24, 2024
• Docket: 07-23-00270-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00270-CV

JASON BARGER, APPELLANT

V.

DGL GROUP, LTD. D/B/A HOVER-1, AND JOHN DOES 1-100, APPELLEES

On Appeal from the 99th District Court Lubbock County, Texas Trial Court No. DC-2022-CV-1220, Honorable J. Phillip Hays, Presiding

January 24, 2024 ORDER OF ABATEMENT AND REMAND Before PARKER and DOSS and YARBROUGH, JJ.

Appellant, Jason Barger, appeals from the trial court’s Order on Defendant’s

Motion for Summary Judgment. We remand the cause to the trial court for further

proceedings.

In 2022, Barger sued Appellees, DGL Group, LTD and “John Does 1-100,” for

products liability and negligence. Barger sought to recover damages allegedly suffered

after the “Hover 1- Rocket hoverboard” he was riding caught fire. According to Barger’s petition, “[t]he true names and capacities, whether individual, corporate, associate or

otherwise, of Defendants Does 1-100 . . . are unknown to Plaintiff” but “Plaintiff is informed

and believes . . . that each [Doe] Defendant . . . is responsible in some manner for the

events and happenings . . . which proximately caused injury to Plaintiff . . . .” It does not

appear from the record, however, that Does 1-100 were ever identified by Barger or

served with process. DGL Group subsequently answered the suit and filed a motion for

summary judgment asserting that Barger’s claims were barred by the statute of

limitations. By order of June 6, 2023, the trial court granted DGL Group’s summary

judgment motion and dismissed Barger’s claims against DGL Group. The order did not

address Barger’s claims against Does 1-100, and no subsequent order has been issued

disposing of those claims.

Generally, with 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.

Whether the trial court’s Order on Defendant’s Motion for Summary Judgment is a

final, appealable order remains unclear. The order bears no language indicative of

finality. And, the record does not reflect whether Barger’s claims against Does 1-100

2 have been pursued, dismissed, or resolved.1 Thus, by letter, we directed the parties to

demonstrate how this Court has jurisdiction over the appeal. Barger responded that the

“the trial court’s intent was to dispose of all the parties and issues.” DGL Group asserted

that it does not challenge the finality of the order but also that “the record does not reflect

that the trial court ever disposed of ‘John Does 1-100.’”

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

clarify whether the Order on Defendant’s Motion for Summary Judgment is a final

judgment and, if necessary, to permit the parties to obtain an order disposing of the claims

against Does 1-100. 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.”).

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 23, 2023.

It is so ordered.

Per Curiam

1 In Texas courts, unidentified defendants may be sued as a “John Doe.” Phila. Indem. Ins. Corp. v. Box, No. 05-02-01555-CV, 2003 Tex. App. LEXIS 2714, at *5 (Tex. App.—Dallas Mar. 28, 2003, no pet.) (mem. op.). For purposes of determining whether a judgment is final, claims against a John Doe defendant must be treated no differently than claims against a named defendant. Id. 3