                              NO. 12-09-00064-CV

                        IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS
MILLARD VAUGHN AND,                             '    APPEAL FROM THE 273RD
BARBARA VAUGHN
APPELLANTS

V.                                              '    JUDICIAL DISTRICT COURT OF

PAUL DRENNON AND,
MARY DRENNON,                                   '    SABINE COUNTY, TEXAS
APPELLEES

                                  MEMORANDUM OPINION

       Millard and Barbara Vaughn own a parcel of land that shares a common boundary
line with land owned by Paul and Mary Drennon. The two couples filed lawsuits against
each other due to their inability to peacefully resolve disputes that arose between them.
A jury returned mixed results for each side and the trial court disregarded portions of the
jury verdict. Only the Vaughns appeal from the trial court’s judgment, complaining of
the portions that are adverse to them. Because the judgment is not final, we dismiss for
want of jurisdiction.
                                         JURISDICTION
       Our initial inquiry is always whether we have jurisdiction over an appeal. Tex.
Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). As a general
rule, with a few mostly statutory exceptions, an appeal may be taken only from a final
judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Rule 301 of
the Texas Rules of Civil Procedure requires the judgment to conform to the pleadings.
TEX. R. CIV. P. 301. Accordingly, a judgment is final for purposes of appeal if it disposes
of all pending parties and claims in the record.1 Lehmann, 39 S.W.3d at 195. A final
judgment is one that determines the rights of the parties and disposes of all the issues
involved so that no future action by the trial court will be necessary in order to settle and
determine the entire controversy. Wagner v. Warnasch, 156 Tex. 334, 338, 295 S.W.2d
890, 892 (1956).
         Texas has long recognized a presumption of finality for judgments that follow a
conventional trial on the merits. Moritz v. Preiss, 121 S.W.3d 715, 718-19 (Tex. 2003).
Moreover, finality must be resolved by a determination of the intention of the trial court
as gathered from the language of the decree and the record as a whole, aided on occasion
by the conduct of the parties. Briscoe v. Goodmark Corp., 102 S.W.3d 714, 718 (Tex.
2003) (Jefferson, J., concurring). If the record does not affirmatively demonstrate our
jurisdiction, we must dismiss the appeal. TEX. R. APP. P. 42.3(a); Wells v. Driskell, 105
Tex. 77, 81, 145 S.W. 333, 336 (1912).
         While previous litigation between the two couples was still not finalized, the
Vaughns sued Paul and Mary Drennon. In a separate action, the Drennons sued the
Vaughns. When the Vaughns filed their amended petition, they named as defendants not
only the Drennons, but also the Drennons’ grandchildren, Chase Atwood and Taylor
Atwood. The trial court consolidated the two cases. All defendants were served and
filed answers.
         Neither the jury charge nor the judgment mentions Chase or Taylor Atwood.
There is no language in the judgment expressly disposing of the entire case. The record
contains no documents disposing of the claims against the Atwood defendants. At oral
argument, we inquired about the disposition of these two parties.                           The Vaughns
responded with a postsubmission letter brief in which they state that “[t]he Atwood
Defendants were never explicitly dismissed or nonsuited, nor were the claims against
them severed.” In spite of this admission, the Vaughns argue that we should apply a
presumption of finality to the judgment. The Vaughns also argue that the judgment is
final because the trial court and the parties intended it to be final. Finally, they assert that



         1
           An order that does not dispose of all pending parties and claims may also be final for purposes of
appeal in some instances not applicable here, e.g., probate cases. See Lehmann, 39 S.W.3d at 195.



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we may abate the appeal to permit the trial court to clarify its intentions or modify the
judgment to make it final.
       There is nothing in the record to indicate that the claims against the Atwood
defendants were disposed of or how the parties intended to dispose of the claims against
the Atwood defendants. The language of the judgment does not unequivocally express an
intent to dispose of all claims and all parties; instead it specifically disposes of only the
Vaughns’ claims against the Drennons and the Drennons’ claims against the Vaughns.
Because the judgment does not address all pending claims, either explicitly or implicitly,
the judgment is not final. Crites v. Collins, 284 S.W.3d 839, 841 (Tex. 2009). Neither
the language of the judgment nor the remainder of the record indicates that the parties or
the trial court intended the judgment to be a final and appealable order. Accordingly, the
trial court’s judgment is interlocutory in nature and the presumption of finality does not
apply. See Moritz, 121 S.W.3d at 719.
       We are prohibited from dismissing an appeal if the trial court’s erroneous action
or inaction prevents the proper presentation of an appeal and can be corrected by the trial
court. TEX. R. APP. P. 44.4(a). The appellate court may allow an appealed order that is
not final to be modified so as to be made final. TEX. R. APP. P. 27.2. If an appellate
court is uncertain about the intent of the trial court’s order, it may, in some cases, abate
the appeal to permit clarification by the trial court. See Lehmann, 39 S.W.3d at 196.
However, we do not construe the rules of appellate procedure as conferring authority on
an appellate court to abate an appeal while there are significant issues yet to be decided
by the trial court. See Garcia v. Comm’rs Court, 101 S.W.3d 778, 785-86 (Tex. App. –
Corpus Christi 2003, no pet.).        We cannot conclude from the record that the
determination of the remaining issues in this case would not require more than the
disposition of perfunctory issues that can be procedurally cured by the trial court’s
entering a clarifying or similar order. See id. at 786. Thus, while we are loathe to delay
this already protracted litigation, abatement in this case would be inappropriate.
Accordingly, we hold there is no final, appealable judgment before this court over which
we have jurisdiction, and that we cannot abate the appeal until a final judgment is before
us.




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                                                    DISPOSITION
         Because the record does not affirmatively demonstrate our jurisdiction, the appeal
is dismissed for want of jurisdiction.



                                                                  JAMES T. WORTHEN
                                                                      Chief Justice


Opinion delivered December 31, 2009
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (PUBLISH)




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