Robert E Lee v. William A. Daya ( 2020 )

Abatement Order filed October 22, 2020.
In The
Fourteenth Court of Appeals
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NO. 14-19-00841-CV
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ROBERT E. LEE, Appellant
V.
WILLIAM A. DAYA, AND THE UNIVERSITY OF TEXAS MEDICAL
BRANCH/CORRECTIONAL MANAGED HEALTH CARE
COMMITTEE, Appellees
On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Cause No. 93910-I
ABATEMENT ORDER
This is an attempted appeal from an order of dismissal signed October 2,
2019. On August 6, 2020, we abated this appeal for supplementation of the clerk’s
record because the record before this court contained no such order. We ordered
the Brazoria County District Clerk to file a supplemental clerk’s record containing
the Order of Dismissal signed by the trial court.
A supplemental clerk’s record was filed containing the same order contained
in the clerk’s record. It provides:
The docket sheet states there was an order of dismissal on October 2, 2019,
and on October 10, 2019, the district clerk notified appellant that an order of
dismissal was signed on October 2, 2019. However, the above is the only order of
that date in either the clerk’s record or the supplemental clerk’s record and it
appears to state the case is retained, not dismissed.
The Texas Supreme Court has advised that if an appellate court is uncertain
about the intent of an order to finally dispose of all claims and parties, it can abate
the appeal to permit clarification by the trial court. See Lehmann v. Har-Con Corp.,
39 S.W.3d 191, 206 (Tex. 2001). Texas Rule of Appellate Procedure 27.2 provides
as follows:
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.
Tex. R. App. P. 27.2.
Accordingly, we order the case abated and remanded to the trial court for a
period of thirty days so that the trial court may clarify whether the case was
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retained or dismissed on October 2, 2019, and to permit the parties to obtain an
appealable order, if necessary. A supplemental clerk’s record containing the trial
court’s clarifying order(s) shall be filed with the clerk of this court on or before
November 23, 2020.
The appeal is abated, treated as a closed case, and removed from this court’s
active docket. The appeal will be reinstated on this court’s active docket when the
supplemental clerk’s record is filed in this court. The court will also consider an
appropriate motion to reinstate the appeal filed by either party, or the court may
reinstate the appeal on its own motion.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Wise and Bourliot.
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