Yevgenia Shockome v. Roberto Reyes, Darwin McKee, and Timothy E. Shockome

• Court: Court of Appeals of Texas
• Decided: September 21, 2022
• Docket: 07-22-00212-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-22-00212-CV

YEVGENIA SHOCKOME, APPELLANT

V.

ROBERTO REYES, DARWIN MCKEE, AND TIMOTHY E. SHOCKOME, APPELLEES

On Appeal from the 201st District Court Travis County, Texas1 Trial Court No. D-1-GN-19-007363, Honorable Lora J. Livingston, Presiding

September 21, 2022 ORDER OF ABATEMENT AND REMAND Before PARKER and DOSS and YARBROUGH, JJ.

Appellant, Yevgenia Shockome, appeals from the trial court’s purported final order.

We remand the cause to the trial court for further proceedings.

In 2019, Yevgenia sued appellees, Roberto Reyes, Darwin McKee, and Timothy

Shockome, for various tort claims arising from a child custody matter. Yevgenia later

Originally appealed to the Third Court of Appeals, this appeal was transferred to this court by the 1

Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. nonsuited her claims against Reyes and the trial court signed an order dismissing the

claims. On April 14, 2022, Yevgenia and McKee filed a “Joint Motion for Nonsuit and

Voluntary Dismissal.” No order granting the nonsuit was issued. On May 11, 2022, the

trial court signed a Final Order, granting Timothy Shockome’s motion for summary

judgment and dismissing the claims against him. This appeal followed.

Generally, with few statutory exceptions, an appeal may be taken only from a final

judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When there

has been no conventional trial on the merits, an order or judgment is not final for purposes

of appeal unless 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.

Here, the Final Order bears no language indicative of finality and the record does

not reflect that Yevgenia’s claims against McKee have been resolved. Thus, until the trial

court grants the nonsuit and dismisses the claims against McKee, the Final Order is not

final and appealable. See In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997) (per curiam)

(“Appellate timetables do not run from the date a nonsuit is filed, but rather from the date

the trial court signs an order of dismissal.”); Iacono v. Lyons, 6 S.W.3d 715, 716 (Tex.

App.—Houston [1st Dist.] 1999, order) (per curiam) (“[W]hen a nonsuit is filed after a

partial judgment has been signed, the judgment does not become final until the trial court

signs either an order granting the nonsuit or a final judgment explicitly memorializing the

nonsuit.”).

We notified Yevgenia by letter of August 11, 2022, that it did not appear that a final

judgment or appealable order had been issued by the trial court and directed her to show

2 how we have jurisdiction over this appeal. Yevgenia has not filed a response or had any

further communication with this Court to date.

Without a final judgment for review, this appeal is premature and we are without

appellate jurisdiction. As an alternative to dismissal, however, we may abate a premature

appeal to allow the trial court to cure a jurisdictional defect, particularly when only the

ministerial act of making a judgment final remains. See TEX. R. APP. P. 27.2; Iacono, 6

S.W.3d at 717 (abating appeal when trial court needed only to act on pending notice of

nonsuit).

Accordingly, we abate this appeal and remand the cause to the trial court to issue

such further orders or judgments necessary to create a final, appealable order or

judgment in this cause. See TEX. R. APP. P. 27.2, 44.4(b). Unless a final, appealable

order or judgment is included in a supplemental clerk’s record and filed with the Clerk of

this Court on or before October 21, 2022, the appeal will be reinstated and dismissed for

want of jurisdiction. See TEX. R. APP. P. 42.3(a).

It is so ordered.

Per Curiam