NUMBER 13-20-00221-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ROEL GARCIA, Appellant,
v.
JAVIER PRIETO GONZALEZ, Appellee.
On appeal from the 398th District Court of Hidalgo County, Texas.
ORDER OF ABATEMENT Before Chief Justice Contreras and Justices Benavides and Silva Order Per Curiam
By three issues, appellant Roel Garcia appeals from an order granting a motion to
dismiss filed by appellee Javier Prieto Gonzalez. We abate the proceeding and remand
it to the trial court for clarification of its March 25, 2020 order of dismissal and to determine
if there is a bankruptcy stay that affects the case. I. BACKGROUND
On September 11, 2014, Garcia filed suit against Tri-Bar d/b/a/ Gonzalez
Entertainment LLC (Tri-Bar), a dance and nightclub, alleging that he was the victim of an
assault and battery at the establishment caused by Prieto, an employee of Tri-Bar. Garcia
asserted claims of negligence, permissive use, respondeat superior, and principal-agent
liability. On December 22, 2015, Garcia filed his first amended petition, adding defendants
Prieto, Leonel De La Torre, and Rene Gonzalez as named defendants under negligence
theories of liability for various acts and omissions arising out of the alleged assault. Garcia
filed his second and final amended petition on March 24, 2016, adding further claims of
negligence as to Rene.
On August 10, 2019, Tri-Bar filed a petition for relief under Chapter 7 of the United
States Bankruptcy Code in the United States Bankruptcy Court for the Southern District
of Texas. On September 10, 2019, Tri-Bar notified the trial court of the filing and the
automatic stay imposed under the Bankruptcy Code. See 11 U.S.C. § 362.
On October 24, 2019, Prieto filed a motion to dismiss on the basis that he had
already made a restitution payment to Garcia in exchange for Garcia’s agreement to drop
criminal charges. The trial court set a hearing on the motion for March 3, 2020, via Zoom.
When neither party appeared for the Zoom hearing, the trial court indicated on the record
that “the motion to dismiss is going to be granted.” On March 25, 2020, the trial court
issued a one-page order granting Prieto’s motion to dismiss, stating as follows:
On MARCH 3, 2020[,] the Court considered the Defendant’s Motion to Dismiss claims and the arguments of counsel. After due consideration of the Motion, the Response thereto, evidence regarding costs and fees, and the arguments of counsel, the Court finds the motion is due to be GRANTED and orders the following:
2 Claims are DISMISSED, with prejudice against JAVIER PRIETO GONZALEZ[.] IT IS FURTHER ORDERED that C-7372-14-I is DISMISSED with prejudice and Attorney fees and costs in the amount of $2,500.00 is ordered to be paid by ROEL GARCIA to Cesar Omar Aguilar, attorney at law in cost to represent JAVIER PRIETO GONZALEZ.
On April 2, 2020, Garcia filed a motion for a new trial, seeking reinstatement of the
case under Texas Rule of Civil Procedure 165a(3). See TEX. R. CIV. P. 165(a)(3). On April
6, 2020, the trial court set a hearing on the motion to reinstate for May 27, but the hearing
never took place. Garcia subsequently filed a notice of appeal, characterizing the March
3, 2020 order granting Prieto’s motion to dismiss as a final order.
II. ANALYSIS
A. Appellate Jurisdiction
Although no party has challenged this Court’s jurisdiction, an appellate court must,
even sua sponte, determine whether it has jurisdiction to hear an appeal. See Walker
Sand, Inc. v. Baytown Asphalt Materials, Ltd., 95 S.W.3d 511, 514 (Tex. App.—Houston
[1st Dist.] 2002, no pet.); see also Jaycap Fin., Ltd. v. Neustaedter, No. 13-17-00680-CV,
2019 WL 6793825, at *2 (Tex. App.—Corpus Christi–Edinburg Dec. 12, 2019, no pet.)
(mem. op.). But for a few limited situations not applicable in this case, we have jurisdiction
only over appeals from final judgments and orders. Bonsmara Nat. Beef Co., LLC v. Hart
of Tex. Cattle Feeders, LLC, 603 S.W.3d 385, 390 (Tex. 2020) (citing Lehmann v. Har–
Con Corp., 39 S.W.3d 191, 195 (Tex. 2001)); see TEX. CIV. PRAC. & REM. CODE ANN. §§
51.012, 51.014. “[A]n order or judgment is not final for purposes of appeal unless it
actually disposes of every pending claim and party or unless it clearly and unequivocally
states that it finally disposes of all claims and all parties.” Lehmann, 39 S.W.3d at 205.
3 If a clear, unequivocal finality phrase is included in an order, then an appellate
court may not look to the record to determine whether the judgment was final and
appealable. See In re Elizondo, 544 S.W.3d 824, 827–28 (Tex. 2018) (orig. proceeding)
(per curiam); see also Lehmann, 39 S.W.3d at 206 (suggesting as a finality phrase the
statement that “[t]his judgment finally disposes of all parties and all claims and is
appealable”). “Instead, it must take the order at face value.” In re Elizondo, 544 S.W.3d
at 828. On the other hand, if an order granting a dispositive motion does not clearly and
unequivocally dispose of all claims and parties, then an appellate court can review the
record to determine whether the order nevertheless actually disposed of them all. See id.
at 826; Lehmann, 39 S.W.3d at 205–06. “If the appellate court is uncertain about the
intent of the order, it can abate the appeal to permit clarification by the trial court.” Id. at
206; TEX. R. APP. P. 27.2.
Here, while the trial court’s order includes the language that “IT IS FURTHER
ORDERED that C-7372-14-I is DISMISSED with prejudice,” the record reflects that Prieto
was the sole defendant to file the motion to dismiss, the only defendant named in the
motion, the only defendant to receive attorney’s fees, and the only defendant given notice
of the ruling. The order does not mention any of the other parties or claims and does not
evidence the trial court’s reasoning for disposition. Accordingly, we seek clarification from
the trial court concerning the finality and appealability of its March 25, 2020 order of
dismissal.
B. Bankruptcy
Pursuant to § 362 of the United States Bankruptcy Code, a stay created by the
filing of a bankruptcy petition is automatic and immediate and precludes “the
4 commencement or continuation . . . of a judicial, administrative, or other action or
proceeding against the debtor that was or could have been commenced before the
commencement of the case under this title, or to recover a claim against the debtor that
arose before the commencement of the case under this title.” 11 U.S.C. § 362(a)(1). “An
action taken in violation of the automatic stay is void, not merely voidable.” York v. State,
373 S.W.3d 32, 38 (Tex. 2012) (quoting Continental Casing Corp. v. Samedan Oil Corp.,
751 S.W.2d 499, 501 (Tex. 1988)).
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NUMBER 13-20-00221-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ROEL GARCIA, Appellant,
v.
JAVIER PRIETO GONZALEZ, Appellee.
On appeal from the 398th District Court of Hidalgo County, Texas.
ORDER OF ABATEMENT Before Chief Justice Contreras and Justices Benavides and Silva Order Per Curiam
By three issues, appellant Roel Garcia appeals from an order granting a motion to
dismiss filed by appellee Javier Prieto Gonzalez. We abate the proceeding and remand
it to the trial court for clarification of its March 25, 2020 order of dismissal and to determine
if there is a bankruptcy stay that affects the case. I. BACKGROUND
On September 11, 2014, Garcia filed suit against Tri-Bar d/b/a/ Gonzalez
Entertainment LLC (Tri-Bar), a dance and nightclub, alleging that he was the victim of an
assault and battery at the establishment caused by Prieto, an employee of Tri-Bar. Garcia
asserted claims of negligence, permissive use, respondeat superior, and principal-agent
liability. On December 22, 2015, Garcia filed his first amended petition, adding defendants
Prieto, Leonel De La Torre, and Rene Gonzalez as named defendants under negligence
theories of liability for various acts and omissions arising out of the alleged assault. Garcia
filed his second and final amended petition on March 24, 2016, adding further claims of
negligence as to Rene.
On August 10, 2019, Tri-Bar filed a petition for relief under Chapter 7 of the United
States Bankruptcy Code in the United States Bankruptcy Court for the Southern District
of Texas. On September 10, 2019, Tri-Bar notified the trial court of the filing and the
automatic stay imposed under the Bankruptcy Code. See 11 U.S.C. § 362.
On October 24, 2019, Prieto filed a motion to dismiss on the basis that he had
already made a restitution payment to Garcia in exchange for Garcia’s agreement to drop
criminal charges. The trial court set a hearing on the motion for March 3, 2020, via Zoom.
When neither party appeared for the Zoom hearing, the trial court indicated on the record
that “the motion to dismiss is going to be granted.” On March 25, 2020, the trial court
issued a one-page order granting Prieto’s motion to dismiss, stating as follows:
On MARCH 3, 2020[,] the Court considered the Defendant’s Motion to Dismiss claims and the arguments of counsel. After due consideration of the Motion, the Response thereto, evidence regarding costs and fees, and the arguments of counsel, the Court finds the motion is due to be GRANTED and orders the following:
2 Claims are DISMISSED, with prejudice against JAVIER PRIETO GONZALEZ[.] IT IS FURTHER ORDERED that C-7372-14-I is DISMISSED with prejudice and Attorney fees and costs in the amount of $2,500.00 is ordered to be paid by ROEL GARCIA to Cesar Omar Aguilar, attorney at law in cost to represent JAVIER PRIETO GONZALEZ.
On April 2, 2020, Garcia filed a motion for a new trial, seeking reinstatement of the
case under Texas Rule of Civil Procedure 165a(3). See TEX. R. CIV. P. 165(a)(3). On April
6, 2020, the trial court set a hearing on the motion to reinstate for May 27, but the hearing
never took place. Garcia subsequently filed a notice of appeal, characterizing the March
3, 2020 order granting Prieto’s motion to dismiss as a final order.
II. ANALYSIS
A. Appellate Jurisdiction
Although no party has challenged this Court’s jurisdiction, an appellate court must,
even sua sponte, determine whether it has jurisdiction to hear an appeal. See Walker
Sand, Inc. v. Baytown Asphalt Materials, Ltd., 95 S.W.3d 511, 514 (Tex. App.—Houston
[1st Dist.] 2002, no pet.); see also Jaycap Fin., Ltd. v. Neustaedter, No. 13-17-00680-CV,
2019 WL 6793825, at *2 (Tex. App.—Corpus Christi–Edinburg Dec. 12, 2019, no pet.)
(mem. op.). But for a few limited situations not applicable in this case, we have jurisdiction
only over appeals from final judgments and orders. Bonsmara Nat. Beef Co., LLC v. Hart
of Tex. Cattle Feeders, LLC, 603 S.W.3d 385, 390 (Tex. 2020) (citing Lehmann v. Har–
Con Corp., 39 S.W.3d 191, 195 (Tex. 2001)); see TEX. CIV. PRAC. & REM. CODE ANN. §§
51.012, 51.014. “[A]n order or judgment is not final for purposes of appeal unless it
actually disposes of every pending claim and party or unless it clearly and unequivocally
states that it finally disposes of all claims and all parties.” Lehmann, 39 S.W.3d at 205.
3 If a clear, unequivocal finality phrase is included in an order, then an appellate
court may not look to the record to determine whether the judgment was final and
appealable. See In re Elizondo, 544 S.W.3d 824, 827–28 (Tex. 2018) (orig. proceeding)
(per curiam); see also Lehmann, 39 S.W.3d at 206 (suggesting as a finality phrase the
statement that “[t]his judgment finally disposes of all parties and all claims and is
appealable”). “Instead, it must take the order at face value.” In re Elizondo, 544 S.W.3d
at 828. On the other hand, if an order granting a dispositive motion does not clearly and
unequivocally dispose of all claims and parties, then an appellate court can review the
record to determine whether the order nevertheless actually disposed of them all. See id.
at 826; Lehmann, 39 S.W.3d at 205–06. “If the appellate court is uncertain about the
intent of the order, it can abate the appeal to permit clarification by the trial court.” Id. at
206; TEX. R. APP. P. 27.2.
Here, while the trial court’s order includes the language that “IT IS FURTHER
ORDERED that C-7372-14-I is DISMISSED with prejudice,” the record reflects that Prieto
was the sole defendant to file the motion to dismiss, the only defendant named in the
motion, the only defendant to receive attorney’s fees, and the only defendant given notice
of the ruling. The order does not mention any of the other parties or claims and does not
evidence the trial court’s reasoning for disposition. Accordingly, we seek clarification from
the trial court concerning the finality and appealability of its March 25, 2020 order of
dismissal.
B. Bankruptcy
Pursuant to § 362 of the United States Bankruptcy Code, a stay created by the
filing of a bankruptcy petition is automatic and immediate and precludes “the
4 commencement or continuation . . . of a judicial, administrative, or other action or
proceeding against the debtor that was or could have been commenced before the
commencement of the case under this title, or to recover a claim against the debtor that
arose before the commencement of the case under this title.” 11 U.S.C. § 362(a)(1). “An
action taken in violation of the automatic stay is void, not merely voidable.” York v. State,
373 S.W.3d 32, 38 (Tex. 2012) (quoting Continental Casing Corp. v. Samedan Oil Corp.,
751 S.W.2d 499, 501 (Tex. 1988)).
On August 10, 2019, Tri-Bar filed its petition for relief under Chapter 7 of the United
States Bankruptcy Code. On September 10, 2019, Tri-Bar notified the trial court of the
automatic stay. On October 19, 2019, Prieto filed a motion to dismiss. And on March 25,
2020, the trial court ruled on Prieto's motion. The record does not indicate whether the
automatic stay has been lifted or terminated, and, thus, whether the trial court’s order was
entered in violation of the stay. Therefore, we seek clarification from the trial court whether
Tri-Bar’s bankruptcy affects this case.
Accordingly, we abate the appeal and remand the cause to the trial court. On
remand, the trial court is directed to (1) clarify whether it intended its March 25, 2020 order
to completely dispose of all claims and all parties; and (2) determine whether Tri-Bar’s
bankruptcy affects this case. The trial court shall cause its findings of fact and conclusions
of law on these matters to be included in a supplemental clerk’s record. The supplemental
clerk’s record shall be filed with the Clerk of this Court within THIRTY (30) days of this
order. The appeal will be reinstated upon filing of the supplemental record and on further
order of this Court.
5 III. CONCLUSION
We abate the appeal and remand the case to the trial court.
PER CURIAM
Delivered and filed on the 21st day of September, 2021.