United States Fire Insurance Company v. Coy Gnade ( 2004 )

United States Fire Insurance et al. v. Coy Gnade, et al.

  IN THE

TENTH COURT OF APPEALS

No. 10-03-00289-CV

No. 10-04-00075-CV

     UNITED STATES FIRE INSURANCE

     COMPANY'S AND NATIONAL UNION

     INSURANCE COMPANY OF

     PITTSBURGH, PENNSYLVANIA,

                                                                              Appellants

     v.

     COY GNADE, ET AL.,

                                                                              Appellees

From the 249th District Court

Johnson County, Texas

Trial Court # C-2001-00430

ABATEMENT ORDER AND

MEMORANDUM OPINION

      United States Fire Insurance Company and National Union Fire Insurance Company of Pittsburgh, Pennsylvania jointly perfected an appeal which the Clerk of this Court docketed under cause number 10-03-00289-CV.

      National Union has settled with Appellees, and these parties have filed an agreed motion to dismiss under Rule of Appellate Procedure 42.1(b). See Tex. R. App. P. 42.1(b). The parties to this agreed motion request that costs be taxed against the party incurring same. Id. 42.1(d). Accordingly, we hereby order that portion of the appeal which seeks review of the judgment rendered against National Union severed from our cause number 10-03-00289-CV and docketed under cause number 10-04-00075-CV. The appeal in cause number 10-04-00075-CV is dismissed with costs taxed against the party incurring same.

      The trial court’s judgment does not dispose of all the claims before that court because the judgment expressly omits Appellees’ claims for declaratory relief. Accordingly, the Clerk of this Court notified the parties that this appeal appears subject to dismissal for want of jurisdiction. In response, Appellees non-suited their claims for declaratory relief. However, the trial court has not signed an order dismissing the non-suited claims.

      “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.” In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997) (orig. proceeding); accord Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995); In re T.G., 68 S.W.3d 171, 175 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). Because the trial court has not signed an order dismissing Appellees’ non-suited claims, the record does not contain a final, appealable judgment. See id.

      Because there is no final judgment, United States Fire’s notice of appeal is premature. See Tex. R. App. P. 27. Rule of Appellate Procedure 27.2 provides in pertinent part that an “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.” Id. 27.2. The Supreme Court has indicated that abatement is the proper procedural mechanism by which to accomplish this. See Lehmann, 39 S.W.3d at 205 & n.92 (citing Tex. R. App. P. 27.2); Harrison v. TDCJ-ID, No. 10-02-00247-CV, slip op. at 2, 2004 Tex. App. LEXIS 2719, at *2 (Tex. App.—Waco Mar. 24, 2004, order).

      It appears that the trial court intended to render a final judgment in this case. However, the record does not contain a final judgment. Accordingly, we abate this cause to the trial court for further consideration of this matter. If the court intended to render a final judgment, then it should enter an appropriate order to effectuate its intent.

      The trial court shall, within thirty days after the date of this Order: (1) conduct a hearing if necessary; (2) make appropriate orders and findings of fact and conclusions of law; and (3) deliver any orders and findings of fact and conclusions of law to the trial court clerk.

      The trial court clerk shall: (1) prepare a supplemental clerk’s record containing all orders and findings of fact and conclusions of law which the trial court renders or makes; and (2) file the supplemental clerk’s record with the Clerk of this Court within forty-five days after the date of this Order.

                                                                   PER CURIAM

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

      (Chief Justice Gray dissenting)

Appeal abated

Order issued and filed March 31, 2004

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