Robert Smith v. City of Lubbock and St. Paul Fire and Marine Insurance Company ( 2011 )

NO. 07-10-0466-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 15, 2011

ROBERT SMITH,  

                                                                                         Appellant

v.

CITY OF LUBBOCK and ST. PAUL FIRE

and MARINE INSURANCE COMPANY,

                                                                                         Appellees

_____________________________

FROM THE 237th DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2008-542,012-A; HONORABLE WILLIAM C. SOWDER, PRESIDING

On Motion to Dismiss/Abatement

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

            Pending before the court is the motion of St. Paul Fire and Marine to dismiss the appeal for want of jurisdiction.  We hold that motion in abeyance and abate and remand the cause for entry of final orders.

            Robert Smith sued several individuals or entities, two of which were St. Paul and the City of Lubbock.  The cause was assigned number 2008-542,012.  The City of Lubbock and St. Paul thereafter filed their respective motions for final summary judgment.   On December 21, 2009, the trial court signed an order wherein it stated that “the court is of the opinion that the City[‘s] . . . Motion . . . should be GRANTED” and “therefore ORDERED, ADJUDGED, and DECREED that the City of Lubbock’s Motion for Summary Judgment is Granted.”  Six months later, that is on June 21, 2010, a separate order was signed by the trial court which not only referred to the prior summary judgment granted the City but also stated that the “Motion for Summary Judgment of . . . St. Paul . . . is granted.”  Through that same order, the claims of Smith against the City and St. Paul were “severed into cause number 2008-542,012-A.” (Emphasis added).  At that point, the trial court wrote, in its order, that the “matters in that cause [2008-542,012-A] are final and are ripe for appeal” and that “the matters in this cause [2008-542,012] will be abated if that cause is appealed.”  Neither order, however, specified whether Smith was denied or granted recovery, in whole or part, against either of the mentioned defendants.  In other words, the orders signed by the trial court did not expressly adjudicate the rights of the parties.

            In Chandler v. Reder, 635 S.W.2d 895 (Tex. App.–Amarillo 1982, no writ), and Disco Machine of Liberal Co. v. Payton, 900 S.W.2d 71 (Tex. App.–Amarillo 1995, writ denied), we had occasion to consider summary judgments which lacked the language necessary to make the order final and appealable.   In Disco, we noted that declarations by the trial court that the summary judgment was granted were “nothing more than an indication of the trial court's decision vis-a-vis the motion[] for summary judgment.” Disco Machine of Liberal Co. v. Payton, 900 S.W.2d at 74. They did “not express a specific settlement of rights between the parties” or “disclose the specific and final result officially condoned by and recognized under the law.”  Id.  Thus, such orders were not final because they did not adjudicate the rights involved or evince a final result recognized by the law.  Texas Windstorm Ins. Ass’n v. Poole, No. 07-07-0061-CV, 2007 Tex. App. Lexis 8281 (Tex. App.–Amarillo October 18, 2007, no pet.) (mem. op.).

            Here, we have like orders simply granting the motions for summary judgment.  Yet, without the decretal language expressly adjudicating the rights involved, the orders are not final, appealable judgments.  Nonetheless, it is rather clear that the trial court intended for the dispute to be final, at least between Smith, the City of Lubbock, and St. Paul.  Given this situation, rule of procedure allows us to grant the trial court opportunity to modify the order from which appeal was taken to make it final.  Tex. R. App. P. 27.2 (stating that the 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).

            Accordingly, we abate the appeal and remand the cause to the trial court.  Upon remand, the trial court is ordered to modify the December 21, 2009 and June 21, 2010 orders granting summary judgment in a manner rendering them final, appealable orders or judgments.  Finally, the trial court is directed to include the modified judgments or orders it may execute in a supplemental record to be filed with the clerk of this court on or before May 16, 2011.

                                                                        Per Curiam