Abatement Order filed January 7, 2020




                                         In The

                        Fourteenth Court of Appeals
                                     ____________

                                 NO. 14-19-00314-CV
                                     ____________

  FAIR OAKS HOUSING PARTNERS, LP INDIVIDUALLY AND D/B/A
 MAXEY VILLAGE APARTMENTS AND MAXEY APARTMENTS, LLC,
                        Appellants

                                           V.

                          EDWIN HERNANDEZ, Appellee


                       On Appeal from the 295th District Court
                               Harris County, Texas
                         Trial Court Cause No. 2013-74985

                               ABATEMENT ORDER

          Appellants’ notice of appeal states their desire to appeal from “the Default
Judgment of October 30, 2014 and the Order Denying Defendants’ Motion to Set
Aside Default Judgment, signed by the Court on February 28, 2019.” It appears the
default judgment is interlocutory under Texas Rule of Civil Procedure 240, which
states:
       Where there are several defendants, some of whom have answered or
       have not been duly served and some of whom have been duly served
       and have made default, an interlocutory judgment by default may be
       entered against those who have made default, and the case may proceed
       or be postponed as to the others.
Tex. R. Civ. P. 240. Neither the default judgment nor the order denying the motion
to set aside the default judgment appears to be final or otherwise appealable.

       On July 8, 2015, the plaintiff filed a motion to sever defendants S&D
Construction and Jose Espinal, otherwise known as Jose Santos. The record does not
reflect a ruling on the motion to sever. On November 2, 2015, the trial court signed
an order of nonsuit regarding defendant Jose Espinal. It appears from the record that
S&D Construction remained as a defendant after Espinal was non-suited.

       Texas Rule of Appellate Procedure 27.2 permits a court of appeals to allow a
non-final appealed order “to be modified so as to be made final.” Tex. R. App. P.
27.2; see Rebector v. Angleton Dansbury Hosp. Dist., No. 14-08-00811-CV, 2010
WL 2681721 (Tex. App.—Houston [14th Dist.] July 8, 2010, pet. denied) (mem.
op.) (abating appeal to allow interlocutory default judgment to be made final).
Further, the Supreme Court of Texas has advised that if an appellate court is
uncertain about a trial court’s intent 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).

       Under the authority of Rule 27.2 and Lehmann, we abate this appeal and
remand to the trial court to permit the trial court to clarify its intent and the parties
to obtain a final judgment if warranted. Any party who wishes to appeal from such
a final judgment shall file an amended notice of appeal. A supplemental clerk’s
record containing any such judgment and a transcript of any hearing held in
connection with this order shall be filed with this court by February 6, 2020.

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      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. 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.

      Appellee’s motion to dismiss for lack of jurisdiction, filed November 6, 2019,
remains pending.

                                    PER CURIAM

Panel consists of Justices Wise, Jewell, and Poissant.




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