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Fourth Court of Appeals
San Antonio, Texas
May 19, 2022
No. 04-21-00392-CV
EILENBERGER’S, INC. d/b/a Sunshine Distributors of SA and William L. Jones,
Appellants
v.
WESTPOINT HOME, LLC,
Appellee
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2018CI08806
Honorable Aaron Haas, Judge Presiding
ORDER
Sitting: Patricia O. Alvarez, Justice
Irene Rios, Justice
Beth Watkins, Justice
Appellants seek to appeal a June 22, 2021 order granting a motion for summary
judgment. The clerk’s record was filed on October 12, 2021, and supplemental clerk’s
records were filed on October 13, 2021 and March 3, 2022. After reviewing the record, it
appears that the summary judgment order does not dispose of all claims in dispute
between the parties. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001)
(“[W]hether a judicial decree is a final judgment must be determined from its language
and the record in the case.”). Specifically, the order does not dispose of appellee
WestPoint Home LLC’s claims for fraud in the inducement and exemplary damages. No
severance order appears in the record, and the summary judgment order does not state
that it disposes of all parties and all claims. See id. at 206.
A judgment that does not dispose of all parties and causes of action is not final
and appealable. See id. at 195; Ne. Indep. Sch. Dist.v. Aldridge, 400 S.W.2d 893, 895
(Tex. 1966). Nevertheless, we may treat the notice of appeal as prematurely filed and
allow appellants time to present this court with a supplemental clerk’s record that
includes a final, appealable order or judgment. See TEX. R. APP. P. 27.2; Lehmann, 39
S.W.3d at 206; Iacono v. Lyons, 6 S.W.3d 715, 717 (Tex. App.—Houston [1st Dist.]
1999, no pet.) (per curiam).
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Therefore, we ABATE this appeal and REMAND this cause to the trial court.
We ORDER appellants to ensure that a supplemental clerk’s record with a final,
appealable judgment or order is filed in this court by June 20, 2022. If appellants fail to
cure the jurisdictional defect as ordered, we will reinstate this appeal and dismiss it for
want of jurisdiction without further notice. See TEX. R. APP. P. 42.3(a). We
WITHDRAW the May 10, 2022 submission date of this appeal pending our resolution of
our jurisdiction.
It is so on ORDERED May 19, 2022.
PER CURIAM
ATTESTED TO:__________________________
MICHAEL A. CRUZ,
CLERK OF COURT