Tami Donald, Jerry Moore, and Summit Spring Water Company, Inc. v. BMR Distributing, Inc., Rhone Water Company Inc. D/B/A Frosty's Water, Brian Rose, and North Texas Mountain Valley Water Corp.

• Court: Court of Appeals of Texas
• Decided: June 13, 2022
• Docket: 05-21-00173-CV
• Status: Published

Opinion

Order entered June 13, 2022

In The Court of Appeals Fifth District of Texas at Dallas

No. 05-21-00173-CV

TAMI DONALD, JERRY MOORE, AND SUMMIT SPRING WATER COMPANY, INC., APPELLANTS

V.

BMR DISTRIBUTING, INC., RHONE WATER COMPANY INC. D/B/A FROSTY'S WATER, BRIAN ROSE, NORTH TEXAS MOUNTAIN VALLEY WATER CORP., AND WATER EVENT GULF COAST, LLC, APPELLEES

On Appeal from the 44th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-08127

ORDER

This is an appeal from a document titled “Final Judgment” that was signed

on December 17, 2020.

In the trial court, the defendants Brian Rose, North Texas Mountain Valley

Water Corp., and Water Event Gulf Coast, LLC (collectively, Rose Defendants)

filed motions for summary judgment, which the trial court granted. However, no dispositive motions were filed as to the remaining two defendants (BMR

Distributing, Inc. and Rhone Water Company, Inc.) before the December 17, 2020

Final Judgment was entered. Plaintiffs filed an amended motion for new trial and

to modify, correct, or reform the judgment in which the plaintiffs stated, among

other things, that the trial court erred by dismissing their claims against BMR

Distributing and Rhone Water. On February 26, 2021, during the hearing on the

plaintiffs’ amended motion for new trial, counsel for the Rose Defendants

indicated they were not opposed to the relief plaintiffs sought as to BMR

Distributing and Rhone Water; counsel stated that if the trial court granted that

relief, then the Rose Defendants would move to sever the claims against them so

that their summary judgments could become final and appealable. During the

hearing, the trial court stated it would grant the plaintiffs’ request to amend the

final judgment and remove BMR Distributing and Rhone Water so that the

plaintiffs’ claims against BMR Distributing and Rhone Water could continue.

However, no amended final judgment was ever entered.1

If an appellate court is uncertain about the intent of an order to finally

dispose of all claims and parties, it may abate the appeal to permit clarification by

the trial court. Bella Palma, LLC v. Young, 601 S.W.3d 799, 801 (Tex. 2020).

Accordingly, we ORDER the case ABATED. We REMAND the case to the trial

1 A review of the record indicates the visiting trial court judge believed the trial court’s plenary power expired and, accordingly, he did not sign an amended final judgment. court so that the trial court may clarify whether the appealed order is a final

judgment. We ORDER the trial court to file a supplemental clerk’s record

containing the trial court’s clarifying order or orders with the Clerk of this Court

on or before July 12, 2022.

This appeal will be reinstated when the supplemental clerk’s record is filed

with this Court, or the Court may reinstate the appeal on its own motion.

/s/ ERIN A. NOWELL PRESIDING JUSTICE