Liberty Sport Aviation, L.P. v. Texas Hill Country Bank

Opinion

Fourth Court of Appeals San Antonio, Texas December 1, 2015

No. 04-15-00480-CV

LIBERTY SPORT AVIATION, L.P., Appellant

v.

TEXAS HILL COUNTRY BANK, Appellee

From the 216th Judicial District Court, Kendall County, Texas Trial Court No. 14-314A Honorable N. Keith Williams, Judge Presiding

ORDER In response to this court’s order to show cause why this appeal should not be dismissed for lack of jurisdiction, appellant has filed a motion to abate the appeal to allow the trial court to sign a final judgment.

When there has not been a conventional trial on the merits, a judgment is final for purposes of appeal only if it actually disposes of all parties and claims then before the court or if “it states with unmistakable clarity that it is a final judgment as to all claims and all parties.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001). In this case, none of the trial court’s orders “state with unmistakable clarity that it is a final judgment as to all claims and all parties.” See id. Further, none of the orders contain any decretal language, declare the legal effect of granting Texas Hill Country Bank’s motion for summary judgment, or expressly dispose of the Bank’s attorney’s fee claim. See In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 829-30 (Tex. 2005); White v. CBS Corp., 996 S.W.2d 920, 922 (Tex. App.—Austin 1999, pet. denied); Mueller v. Banks, 317 S.W.2d 256, 256 (Tex. App.—San Antonio 1958, no pet.); see also 5 Roy W. McDonald & Elaine A. Grafton Carlson, Texas Civil Practice 2d § 27.4 (Supp. 2014) (“[A] an order that fails to include decretal language will not result in a final judgment.”).

We grant the motion and abate the appeal. We order the trial court to consider whether it intended to render a final judgment on Texas Hill Country Bank’s claims against Liberty Sport Aviation L.P. and, if so, to sign a judgment that is final for purposes of appeal. We order the Kendall County District Clerk to file by January 15, 2016, a supplemental record containing any pleadings, orders, or judgment relating to this order.

_________________________________ Luz Elena D. Chapa, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 1st day of December, 2015.

___________________________________ Keith E. Hottle Clerk of Court