Jose Saenz v. Kyle Bowman and McDonald's Corporation

Opinion

In The

Court of Appeals

Seventh District of Texas at Amarillo

No. 07-25-00399-CV

JOSE SAENZ, APPELLANT

V.

KYLE BOWMAN AND MCDONALD’S CORPORATION, APPELLEES

On Appeal from the 72nd District Court Lubbock County, Texas

Trial Court No. DC-2024-CV-0966, Honorable John C. Grace, Presiding

August 19, 2026

ORDER OF ABATEMENT AND REMAND Before DOSS and YARBROUGH and PRATT, JJ.

Pending before this Court is the purported appeal of the trial court’s summary judgment signed on November 20, 2025. Because uncertainties remain concerning our jurisdiction over this cause, we abate the appeal, remove it from our active docket, and remand the matter to the trial court.

BACKGROUND

On July 25, 2024, Jose Saenz filed suit against Kyle Bowman and McDonald’s Corp. McDonald’s answered and actively participated in litigation. Bowman, however, made no appearance. On July 2, 2025, McDonald’s filed its traditional and no-evidence motion for summary judgment. Continued several times, the trial court ultimately heard the motion on November 13, 2025.

That same day, Saenz filed his motion for alternative service, alleging that Saenz initially believed that Bowman had been properly served only to discover later that the return of service was flawed. Since realizing the error, Saenz alleged, several subsequent attempts to serve Bowman had been made without success. The record indicates that the motion for alternative service was not expressly ruled upon.

Approximately one week later, on November 20, 2025, the trial court signed its order granting McDonald’s traditional and no-evidence motion for summary judgment. More specifically the trial court made the following pronouncements:

It is therefore ORDERED, ADJUDGED AND DECREED that McDonald’s Corporation’s Traditional and No Evidence Motion for Summary Judgment is granted. It is therefore ORDERED, ADJUDGED AND DECREED by the Court that Plaintiff’s claims in the above-entitled and numbered cause against Defendant McDonald’s Corporation are hereby dismissed with prejudice to the refiling of same in any form.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that any crossclaims or cross actions pending herein are dismissed with prejudice to the refiling of same in any form. All other relief not herein granted is hereby denied. This Judgment shall be final for all purposes of all claims and actions herein. Costs are taxed against the party incurring same.

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Saenz timely filed his notice of appeal, and the parties have submitted briefs in the cause. The Court has begun its review of the cause and notes a potential jurisdictional defect.

APPELLATE JURISDICTION

The jurisdictional ambiguity centers on Bowman, who appears to never have been served. He has not appeared in this matter, and the trial court’s summary judgment does not specifically refer to Bowman or claims against Bowman.

Though the issue of our jurisdiction over this cause has not been raised by the parties, we are nonetheless obligated to consider sua sponte issues that may affect our jurisdiction. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam); Buffalo Royalty Corp. v. Enron Corp., 906 S.W.2d 275, 277 (Tex. App.—Amarillo 1995, no writ). “An appellate court lacks jurisdiction to review an interlocutory order unless a statute specifically authorizes an exception to the general rule, which is that appeals may only be taken from final judgments.” Qwest Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334, 336 (Tex. 2000) (per curiam).

In cases where there is no conventional trial on the merits and no statutory exception applies, a judgment is final for purposes of appeal only if (1) it actually disposes of all claims and parties before the court, regardless of its language or (2) the order states with unmistakable clarity that it is a final judgment. See Guajardo v. Conwell, 46 S.W.3d 862, 863–64 (Tex. 2001) (per curiam); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192 (Tex. 2001).

Here, we have a summary judgment that appears to dispose of all claims against McDonald’s, but it does not expressly dispose of claims against Bowman, the ostensibly

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unserved, non-appearing co-defendant. The judgment specifically dismisses with prejudice Saenz’s “claims . . . against Defendant McDonald’s Corporation.” It goes to declare finality for all purposes of “all claims and actions herein,” without decretal language touching on the disposition of all parties.

In such a situation, we can consider the judgment to be final against the unserved, non-appearing Bowman if the record establishes the following conditions:

(1) The trial court granted summary judgment expressly disposing of the plaintiff’s claims against all parties named in the petition except one;

(2) So far as can be determined from the record, the remaining defendant was never served with citation and did not file an answer; and

(3) Nothing in the record indicates the plaintiff ever expected to obtain service upon the remaining party.

See Rape, 139 S.W.3d at 674 (determining that analysis as outlined in Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962), still applied to the particular facts, post-Lehmann).

If we find that the record establishes all three of the Penn conditions, then “the case stands as if there had been a discontinuance as to [the unserved party], and the judgment is to be regarded as final for the purpose of appeal.” Rape, 139 S.W.3d at 674 (quoting Penn, 363 S.W.2d at 232); see Wedgeworth v. City of Amarillo, No. 07-15- 00301-CV, 2016 Tex. App. LEXIS 5241, at *4 (Tex. App.—Amarillo May 17, 2016, pet. denied) (mem. op.) (applying Penn analysis and concluding judgment was final when

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“[t]he record provide[d] no indication [plaintiff] intended to proceed against [two unserved defendants]”).

ANALYSIS

The first two prongs of the Penn analysis have been met. The trial court’s summary judgment expressly disposed of Saenz’s claims against McDonald’s but did not expressly dispose of claims against Bowman. Also, the record suggests Bowman was unserved and did not file an answer. For the final prong of the analysis, we must evaluate whether the record demonstrates Saenz held no expectation or intention of serving Bowman.

When Saenz discovered that Bowman had not been properly served, he enlisted a new process server who, per his affidavit, made several attempts to effectuate service, to no avail. Saenz then moved for the trial court’s leave to serve Bowman by alternative means. He filed this motion in November 2025 and only days before the trial court granted summary judgment. So, at the time judgment was entered, it would appear from Saenz’s efforts and his motion for alternative service that Saenz expected or intended to serve Bowman. Contrast Rebector v. Angleton Danbury Hosp. Dist., No. 14-08-00811-CV, 2010 Tex. App. LEXIS 5311, at *5 (Tex. App.—Houston [14th Dist.] July 8, 2010, pet. denied) (mem. op.) (when record contained some indication that plaintiff expected or intended to obtain service on defendant, concluding that Penn conditions were not satisfied and noting that case was abated to permit parties to obtain final, appealable judgment), with Sondock v. Harris Cty. Appraisal Dist., 231 S.W.3d 65, 67 n.1 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (in cause where summary judgment was granted in favor of one defendant without reference to another, unserved defendant,

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proceeding to merits of case when, ostensibly, record supported conclusion that plaintiff did not expect to obtain service on unserved defendant), and McDaniels v. Mittemeyer, No. 07-03-00234-CV, 2004 Tex. App. LEXIS 2612, at *1 n.2 (Tex. App.—Amarillo Mar. 24, 2004, pet. denied) (mem. op.) (when nothing of record indicated that plaintiff “continued to attempt or expected to obtain service upon” a co-defendant, deeming summary judgment against all other defendants as final for purposes of appeal).

Thus, we are unable to conclude that the record establishes Saenz did not expect or intend to obtain service on Bowman. The judgment fails to satisfy the third condition of the Penn standard, and we are unable to definitively determine the finality of the summary judgment signed November 20, 2025.

INSTRUCTIONS ON REMAND

When an appellate court is uncertain as to the trial court’s intent to finally dispose of all claims and parties, it may abate the appeal to permit the trial court to clarify. See Lehmann, 39 S.W.3d at 206; see also TEX. R. APP. P. 27.2 (authorizing intermediate appellate court to abate an order to be modified so as to be made final); Nguyen v. Nguyen, No. 07-24-00093-CV, 2024 Tex. App. LEXIS 5961, at *6 (Tex. App.—Amarillo Aug. 19, 2024, order) (abating and remanding case when conflicting record evidence concerning finality of judgment “preclude[d] our threshold determination of appellate jurisdiction and the scope of the parties and issues before us”).

Accordingly—and without reaching the merits of the trial court’s judgment signed November 20, 2025, or passing on substantive matters related to service—we abate this appeal and remand the case to the trial court for clarification on the finality of its summary

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judgment. Accord Palma v. Young, 601 S.W.3d 799, 801 (Tex. 2020) (per curiam); Lehmann, 39 S.W.3d at 206. The trial court is free to determine the appropriate and applicable means by which it could make clear that its summary judgment is final as to all parties and all claims and may include findings of fact and conclusions of law, should it deem them necessary, to inform our jurisdiction over Saenz’s appeal. Alternatively, or additionally, the parties may take the necessary step—be it severance, non-suit, or some other means—to obtain a final judgment if the facts developed below so compel.

The trial court shall cause to be filed in this Court a supplemental clerk’s record which contains additional filings by the parties, if any; the trial court’s orders, if any; and any findings and conclusions that the trial court may deem relevant. The supplemental clerk’s record should be filed with the Clerk of this Court on or before September 18, 2026.

IT IS SO ORDERED.

Per Curiam