Pirochem International, L.L.C. v. Xelia Pharmaceuticals APS, F/K/A Axellia Pharmaceuticals, APS

Abatement Order filed June 25, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00518-CV

PIROCHEM INTERNATIONAL, L.L.C., Appellant
V.
XELLIA PHARMACEUTICALS APS, F/K/A AXELLIA
PHARMACEUTICALS, APS, Appellee

On Appeal from the 80th District Court
Harris County, Texas
Trial Court Cause No. 2013-36994

ABATEMENT ORDER

This is an appeal from a judgment signed March 25, 2014. It appears from
the record that the judgment may not be final. Although the judgment states that it
is “final and appealable,” the trial court struck through the award of attorney’s fees
and added the handwritten note, “No evidence of attorney’s fees was submitted.”
Accordingly, the trial court denied appellee summary judgment relief on attorney’s
fees, but it is unclear whether the trial court intended to adjudicate the claim for
attorney’s fees. See Wasserberg v. RES-TX One, LLC, No. 14-13-00674-CV, 2014
WL 6922545, at *4 (Tex. App.—Houston [14th Dist.] Dec. 9, 2014, pet. filed)
(mem. op.) (by striking the award of attorney’s fees, the trial court “neither granted
nor denied an award of fees,” merely denied summary judgment relief, and did not
adjudicate the claim for attorney’s fees); see also Youngblood & Assocs, P.L.L.C.
v. Duhon, 57 S.W.3d 63 (Tex. App.—Houston [14th Dist.] 2001, no pet.)
(judgment not final even though it was labeled “final summary judgment,”
included a Mother Hubbard clause, and awarded pre- and post-judgment interest,
because the plaintiff moved on its claim for attorney’s fees and the judgment
contained no award of attorney’s fees).
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 (1) the trial court may clarify whether the summary
judgment finally disposed of all claims and parties and (2) the parties may obtain
an order disposing of the claim against appellant, 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 thirty days from the date of this order.
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

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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. It is the responsibility of any party seeking
reinstatement to request a hearing date from the trial court and to schedule a
hearing, if a hearing is required, in compliance with this court’s order. If the
parties do not request a hearing, the court coordinator of the trial court shall set a
hearing date and notify the parties of such date.

PER CURIAM

Panel consists of Chief Justice Frost and Justices Boyce and McCally.

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