Sherif T. Elamir, M.D. v. DB Insurance Co., LTD and John Hilliard

Opinion

In The

Court of Appeals

Seventh District of Texas at Amarillo

No. 07-26-00080-CV

SHERIF T. ELAMIR, M.D., APPELLANT V.

DB INSURANCE CO., LTD. AND JOHN HILLIARD, APPELLEES

On Appeal from the 181st District Court Randall County, Texas

Trial Court No. 84932B, Honorable Titiana Frausto, Presiding

August 28, 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 January 2, 2026. 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 June 3, 2024, Sherif T. Elamir, M.D., filed suit against DB Insurance Co., LTD.

(DB Insurance) based upon a claim for water damage suffered in a condominium owned by Elamir in California. On June 4, 2024, Elamir added John Hilliard, an adjuster and claim manager who worked for DB Insurance and handled Elamir’s claim. Elamir added claims under the Texas Deceptive Trade Practices Act (DTPA) and Texas Insurance Code against both DB Insurance and Hilliard on October 29, 2024. On November 19, 2025, DB Insurance and Hilliard filed a hybrid traditional and no-evidence motion for summary judgment on Elamir’s claims, which they amended the same day. Elamir then filed a third amended petition on December 22, 2025, in which he added three new parties, and citation was issued for one of the parties that same day. On December 29, 2025, DB Insurance and Hilliard again amended their motion for summary judgment.

After the exchanges of responses and replies on the motion for summary judgment, on January 2, 2026, the trial court granted DB Insurance and Hilliard’s second amended motion for summary judgment. More specifically the trial court made the following pronouncements:

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Defendants DB Insurance Co., LTD and John Hilliard’s Second Amended Traditional and No-Evidence Motion for Summary Judgment is hereby GRANTED.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that all causes of action asserted by Plaintiff [Elamir] against Defendants DB Insurance Co., LTD and John Hilliard are dismissed in their entirety with prejudice.

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The order did not address the claims asserted by Elamir against the three defendants added by his third amended petition and contained no decretal language to indicate the order was final and appealable. Elamir filed his notice of appeal on January 27, 2026, and the next day citations were issued for the remaining two defendants added by Elamir in his live petition. As of February 2, 2026, the date of the filing of the record before us, the defendants have not yet appeared in this matter.

Elamir timely filed his notice of appeal, and the parties have submitted briefs. As a preliminary matter, DB Insurance and Hilliard have urged us to dismiss this appeal because there is no final, appealable order which disposes of all the parties.

APPELLATE JURISDICTION

“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.” Saenz v. Bowman, No. 07-25-00399-CV, 2026 Tex. App. LEXIS 7892, at *3 (Tex. App.—Amarillo Aug. 19, 2026, order) (mem. op.) (citing 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. Id. (citing 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)).

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Here, we have a summary judgment that appears to dispose of all claims against DB Insurance and Hilliard, but it does not expressly dispose of claims against the recently added and ostensibly unserved, non-appearing co-defendants. The judgment also lacks 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 parties 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 motion except the remaining defendants;

(2) so far as can be determined from the record, the remaining defendants were 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 defendants.

Id. (citing M. O. Dental Lab v. Rape, 139 S.W.3d 671, 674 (Tex. 2004); Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962)).

If we find that the record establishes all three of these 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.” Id. (citing Rape, 139 S.W.3d at 674 (quoting Penn, 363 S.W.2d at 232; 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.)).

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ANALYSIS

The first two prongs of the Penn analysis have been met. The trial court’s summary judgment expressly disposed of Elamir’s claims against DB Insurance and Hilliard, but it did not expressly dispose of claims against the remaining defendants. Also, the record suggests the remaining defendants were not served and have not filed their respective answers. For the final prong of the analysis, we must evaluate whether the record demonstrates Elamir held no expectation or intention of serving the remaining defendants.

Within thirty days of the trial court’s ruling on the motion for summary judgment, Elamir sought the issuance of citations for the remaining defendants. In addition, those defendants appear to be in the State of California, and Elamir would require some amount of time to serve them, if he intended to do so. The record itself was produced only five days after citation was issued for the additional defendants. So, at the time judgment was entered, it would appear from Elamir’s efforts that he expected or intended to serve the remaining defendants. See id. at *5–6.

Thus, we are unable to conclude that the record establishes Elamir did not expect or intend to obtain service on the remaining defendants. 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 January 2, 2026.

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

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Id. at *6–7. Accordingly, without reaching the merits, we abate this appeal and remand the case to the trial court for clarification on the finality of its summary judgment. 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 Elamir’s appeal. Alternatively, or additionally, the parties may take the necessary steps—be it severance, non-suit, or some other means—to obtain a final judgment if the facts developed below so compel. Id. at *7–8.

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 28, 2026.

IT IS SO ORDERED.

Per Curiam