L&W Supply Corporation D/B/A Building Specialties v. Thomas Kizziah, Individually

• Court: Court of Appeals of Texas
• Decided: September 29, 2022
• Docket: 09-20-00198-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00198-CV __________________

L&W SUPPLY CORPORATION D/B/A BUILDING SPECIALTIES, Appellant

V.

THOMAS KIZZIAH, INDIVIDUALLY, Appellee __________________________________________________________________

On Appeal from the 172nd District Court Jefferson County, Texas Trial Cause No. E-204043 __________________________________________________________________

ORDER

On July 17, 2020, the trial court signed an order denying the plaintiff’s motion

for summary judgment and an order granting the defendant’s motion for summary

judgment. Neither order includes a statement that, “This judgment is final and

disposes of all parties and all claims and is appealable.” Additionally, the order

granting the defendant’s motion for summary judgment does not expressly dispose

of the plaintiff’s claims, for example by stating that L&W Supply Corporation takes

nothing on its claims against Thomas Kizziah. “An order that merely grants a motion

1 for judgment is in no sense a judgment itself. It adjudicates nothing.” Naaman v.

Grider, 126 S.W.3d 73, 74 (Tex. 2003). “If the appellate court is uncertain about the

intent of the order, it can abate the appeal to permit clarification by the trial court.”

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001). “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

On our own motion, we abate the appeal and remand the cause to the trial

court. On remand, the trial court shall give notice to the parties and counsel and

supplement the record to indicate whether it rendered a final judgment on July 17,

2020. If the trial court intended to render a final disposition of all parties and all

claims, it shall modify the Order of July 17, 2020 to state that intent clearly and

unequivocally. A supplemental clerk’s record containing the order clarifying the trial

court’s intent regarding finality shall be filed with the clerk of this Court on or before

October 31, 2022. The appeal will be reinstated without further order of this Court

when the supplemental clerk’s record is filed with the Court of Appeals.

ORDER ENTERED September 29, 2022.

PER CURIAM

Before Golemon, C.J., Horton and Johnson, JJ.