S&B Engineers & Constructors, Ltd. and Zurich American Insurance Company v. Scallon Controls, Inc.

• Court: Court of Appeals of Texas
• Decided: September 1, 2022
• Docket: 09-22-00261-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00261-CV __________________

S&B ENGINEERS & CONSTRUCTORS, LTD. AND ZURICH AMERICAN INSURANCE COMPANY, Appellants

V.

SCALLON CONTROLS, INC., Appellee

__________________________________________________________________

On Appeal from the 172nd District Court Jefferson County, Texas Trial Cause No. E-198,919 __________________________________________________________________

ORDER

Upon receiving the clerk’s record, the Court finds it is necessary to abate the

appeal and remand the case to the trial court for an order clarifying the trial court’s

orders granting motions for summary judgment.

To be final, a judgment must dispose of all issues and parties in a case. N.E.

Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). No presumption of

finality arises when a judgment is signed without a traditional trial on the merits.

1 Crites v. Collins, 284 S.W.3d 839, 841 (Tex. 2009). To determine whether such an

order is final, we examine the express language of the order and whether the order

actually disposes of all claims against all parties. Id. “A judgment that finally

disposes of all remaining parties and claims, based on the record in the case, is final,

regardless of its language.” Lehmann v. Har–Con Corp., 39 S.W.3d 191, 200 (Tex.

2001). “Thus, if a court has dismissed all of the claims in a case but one, an order

determining the last claim is final.” Id. A judgment is final either if “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. When unmistakable

language of finality is missing, the record resolves the issue. Bella Palma, LLC v.

Young, 601 S.W.3d 799, 801 (Tex. 2020).

On February 12, 2020, the trial court granted a motion to realign the parties

with S&B Engineers and Constructors, Ltd., Sunoco Logistics Partners Operations

GP LLC, and Sunoco Logistics Partners LP as plaintiffs and Scallon Controls, Inc.

as defendant. On December 9, 2021, the trial court signed an order nonsuiting the

claims of Sunoco Logistics Partners Operations GP LLC, and Sunoco Logistics

Partners LP without prejudice. On December 10, 2021, Zurich American Insurance

Company filed a petition in intervention asserting a subrogation claim against

Scallon Controls, Inc. On January 27, 2022, the trial court signed an order denying

the motion for summary judgment filed by S&B Engineers and Constructors, Ltd.

2 and granting the motion for summary judgment filed by Scallon Controls, Inc., “in

its entirety.” The January 27, 2022 order is expressly interlocutory due to the

unresolved intervention. On July 15, 2022, the trial court signed an order stating that

Scallon Controls, Inc.’s motion for summary judgment on the petition in intervention

of Zurich American Insurance Company “is hereby in all things GRANTED.”1

Neither of the orders granting Scallon Controls, Inc.’s motions for summary

judgment contain decretal language actually disposing of the claims asserted by

S&B Engineers and Constructors, Ltd. and Zurich American Insurance Company.

The decretal portion of a judgment grants or denies the remedy sought. Matter

of Guardianship of Jones, 629 S.W.3d 921, 925 (Tex. 2021). “An order that merely

grants a motion for judgment is in no sense a judgment itself. It adjudicates nothing.”

Naaman v. Grider, 126 S.W.3d 73, 74 (Tex. 2003). But finality requires no particular

phraseology so long as the judgment is expressed in language which is significant in

common understanding and parlance. Jones, 629 S.W.3d at 926. “An order that

merely grants a motion for summary judgment without any decretal language

actually disposing of a claim is not a judgment on any claim.” Frausto v. RC Indus.

LLC, 605 S.W.3d 54, 56 (Tex. App.—San Antonio 2020, no pet.).

In Jones, the trial court signed an order that granted motions to dismiss a bill

of review. 629 S.W.3d at 923. Although the order lacked decretal language, the order

1 The Order of July 15, 2022 has been omitted from the clerk’s record. 3 did state, “This order is a final order.” Id. at 924. Here, neither order granting the

defendant’s motion for summary judgment decrees that the plaintiff or intervenor

take nothing, the January 27, 2022 order is expressly interlocutory, and the July 15,

2022 order does not state that it is a final order. “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, 39 S.W.3d at 206.

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 appellate counsel and

supplement the record to indicate whether it rendered a final judgment on July 15,

2022. If the trial court intended to render a final disposition of all parties and all

claims, it shall modify the Order of July 15, 2022 to state that intent clearly and

unequivocally. 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.”). Conversely, if the trial court concludes it did not intend to render a final

judgment, it shall so certify in writing. See Disco Mach. of Liberal Co. v. Payton,

900 S.W.2d 71, 74 (Tex. App.—Amarillo 1995, writ denied) (abating and remanding

appeal for clarification of whether final judgment was intended). A supplemental

clerk’s record containing the July 15, 2022 order and the modified order clarifying

its intent regarding finality, or the trial court’s certification that it did not intend a

4 final judgment, shall be filed with the clerk of this Court on or before October 3,

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. All appellate

deadlines are suspended while the case is on remand to the trial court.

ORDER ENTERED September 1, 2022.

PER CURIAM

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