Western International Gas & Cylinders, Inc. v. H&H Land, L.P

Opinion

Opinion issued March 9, 2021

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00855-CV ——————————— WESTERN INTERNATIONAL GAS & CYLINDERS, INC., Appellant V. H&H Land, L.P., Appellee

On Appeal from the 333rd District Court Harris County, Texas Trial Court Case No. 2019-43321

MEMORANDUM OPINION

Appellant, Western International Gas & Cylinders, Inc., is attempting to

appeal the trial court’s Final Judgment entered on December 15, 2020. On January

29, 2021, appellee, H&H Land, L.P., filed a motion to dismiss, contending that on

December 15, 2020, the trial court issued two orders: (1) an order denying appellee’s motion for fees and (2) an order granting final judgment. Appellee

further contends that on December 16, 2020, the trial court vacated its two

December 15, 2020 orders, thus leaving appellee’s claim for attorney’s fees

pending in the trial court. On February 8, 2021, appellant responded to the motion

to dismiss, conceding that the record does not contain a final, appealable judgment,

but arguing that we should abate the appeal until the trial court enters a final

judgment, pursuant to Rule 27.1 of the Texas Rules of Appellate Procedure.

Generally, appeals may be taken only from final judgments. Lehmann v.

Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When orders do not dispose of

all pending parties and claims, the orders remain interlocutory and unappealable

until final judgment is rendered unless a statutory exception applies. Bally Total

Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001).

Our review of the record confirms appellee’s contention that the trial court

vacated its December 15, 2020 orders and that no final judgment appears in the

record. Although we can abate for the trial court to clarify whether its judgment

was final, no clarification is needed here because the trial court vacated its final

judgment. See Lehmann, 39 S.W.3d at 206 & n.92.

Because the trial court vacated and set aside its December 15, 2020 orders,

the record does not contain a final judgment or other appealable order.

Accordingly, we grant appellee’s motion to dismiss and dismiss the appeal for

2 want of jurisdiction. See TEX. R. APP. P. 42.3(a). We dismiss any pending

motions as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Goodman and Farris.