Billy C. Whitfield and Carolyn Whitfield v. Charles Thomas Ondrej

Fourth Court of Appeals
San Antonio, Texas
November 13, 2015

No. 04-15-00052-CV

Billy C. WHITFIELD and Carolyn Whitfield,
Appellants

v.

Charles Thomas ONDREJ, et al.,
Appellees

From the 81st Judicial District Court, Karnes County, Texas
Trial Court No. 12-10-00231-CVK
Honorable Stella Saxon, Judge Presiding

ORDER
Appellants seek to appeal a summary judgment order signed on January 8, 2015. After
appellants filed their brief, appellees filed a motion to dismiss for lack of jurisdiction, arguing
that the summary judgment order is a non-appealable interlocutory order because it did not
resolve appellees’ claims for attorneys’ fees. See Lehmann v. Har-Con Corp., 39 S.W.3d 191,
200, 205 (Tex. 2001) (summary judgment that does not dispose of all parties and causes of action
is not final and appealable). Appellants filed a response to the motion to dismiss in which they
argued that the trial court intended to and did dispose of all causes of action by the order.
Appellees alternatively request that the appeal be abated to permit the trial court to clarify its
intention. Appellants filed a reply in support of the motion to dismiss for lack of jurisdiction
reiterating that the summary judgment order did not address appellees’ counterclaims and
requests for attorneys’ fees.

After reviewing the record, it appears that the summary judgment is interlocutory because
it does not dispose of the appellees’ claims for attorneys’ fees, and no severance order appears in
the clerk’s record. See McNally v. Guevara, 52 S.W.3d 195, 195 (Tex. 2001) (summary
judgment that does not dispose of attorneys’ fees is not a final, appealable order); Lehmann, 39
S.W.3d at 200, 205. Accordingly, it is ORDERED that this appeal is ABATED for a period of
45 days to permit the trial court to either: (1) hear and dispose of the appellees’ pending claims
for attorneys’ fees and enter a final judgment; or (2) enter an order severing the pending
attorneys’ fees claims in order to render the January 8, 2015 summary judgment order final and
appealable.
 The appellants are further ORDERED to file a supplemental clerk’s record containing the
trial court’s final judgment or severance order, and a supplemental reporter’s record if
applicable, in this court within 30 days after expiration of the abatement period. Further,
within 30 days after the expiration of the abatement period, appellants must file either: (1) a
letter informing the court that they are relying on their original brief, or (2) an amended brief.
Appellees’ brief is due within 30 days of the appellants filing either a letter informing the court
that they are relying on their original brief, or appellants’ amended brief. All other appellate
deadlines are suspended pending further order of the court.

_________________________________
Rebeca C. Martinez, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 13th day of November, 2015.

___________________________________
Keith E. Hottle
Clerk of Court