Abatement Order filed August 27, 2015.




                                     InThe

                   Fourteenth Court of Appeals
                                 ____________

                             NO. 14-14-00865-CV
                                 ____________

          CORESLAB STRUCTURES (TEXAS), INC., Appellant

                                       V.

            SCOTTSDALE INSURANCE COMPANY, Appellee


                   On Appeal from the 55th District Court
                           Harris County, Texas
                    Trial Court Cause No. 2010-55665A

                          ABATEMENT ORDER

     The appellate record reflects the following procedural history:

   In July 2012, in cause no. 2010-55665, in the 55th Judicial District Court of
    Harris County, Texas, defendant Coreslab Structures (Texas), Inc. asserted
    third-party claims against third-party defendant Scottsdale Insurance
    Company.

   In December 2012, in the same case, Scottsdale asserted a counterclaim
    against Coreslab seeking a declaratory judgment on the duty-to-defend issue.
     In January 2014, the trial court severed Coreslab’s claims against Scottsdale
      and Scottsdale’s counterclaim against Coreslab into cause no. 2010-55665A,
      in the 55th Judicial District Court of Harris County, Texas. All subsequent
      references are to filings in the severed case.

     In April 2014, Scottsdale filed an amended answer, affirmative defenses,
      special exceptions, jury demand, and counterclaim. In that document
      Scottsdale asserted a different counterclaim against Coreslab, in which
      Scottsdale sought judgment against Coreslab for legal and equitable relief,
      attorney’s fees, and interest. Scottsdale did not state in that document that it
      was abandoning, amending, or superseding its prior counterclaim.

     On June 16, 2014, the trial court signed an “Order Denying Plaintiff’s
      Motion for Reconsideration,” in which the court stated that it granted
      Scottsdale’s motion for entry of a take-nothing judgment and dismissed
      Scottsdale’s counterclaim as moot. On the same day, the trial court signed a
      “Proposed Agreed Take-Nothing Judgment,” in which the court ordered that
      Scottsdale take nothing as to its counterclaim against Coreslab. These two
      documents constituted a single, final judgment, in which the trial court both
      dismissed Scottsdale’s counterclaim as moot and ordered that Scottsdale
      take nothing as to its counterclaim. See Henderson v. Shanks, 449 S.W.3d
      834, 838 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).

     On July 23, 2014, while the trial court still had plenary power, the trial court
      signed an amended judgment in which it ordered that Scottsdale take nothing
      as to its counterclaim and did not dismiss Scottsdale’s counterclaim as moot.

     On August 25, 2014, while the trial court still had plenary power, the trial
      court signed an order in which it (1) denied Coreslab’s motion for new trial,
      (2) vacated its judgment of June 16, 2014, and (3) vacated its amended
      judgment of July 23, 2014, thus reinstating Coreslab’s claims and
      Scottsdale’s counterclaim.1

1
 In post-submission briefing, Coreslab and Scottsdale both cite the August 25, 2014 order as one
in which the trial court dismissed Scottsdale’s counterclaim. Under the unambiguous language
of the order contained in our appellate record, the trial court did not dismiss Scottsdale’s
counterclaim in the August 25, 2014 order. Instead, the trial court vacated prior judgments in
which the court had disposed of Scottsdale’s counterclaim, thus reinstating Scottsdale’s
counterclaim.
    On September 30, 2014, the trial court signed an order in which it granted
     Scottsdale’s motion for summary judgment and ordered that Coreslab take
     nothing as to its claims against Scottsdale.
        This is an appeal from the September 30, 2014, summary-judgment order.
The record reflects that when the trial court signed this order, at least one, and
perhaps two, counterclaims by Scottsdale were pending. Our record does not
contain a nonsuit or severance of any counterclaim by Scottsdale, and no party
asserts that any counterclaim by Scottsdale was nonsuited or severed. In its
summary-judgment order, the trial court did not mention or adjudicate any
counterclaim by Scottsdale, nor did the trial court include in its order language
stating with unmistakable clarity that it was rendering a final judgment. See
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192, 200 (Tex. 2001). It appears from
the record that the judgment is not final.

        The Supreme Court of Texas has advised that if an appellate court is
uncertain about the intent of an order to dispose finally of all claims and parties, it
can abate the appeal to permit clarification by the trial court. See id. at 206. 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 the trial court may clarify whether the summary
judgment is final. A supplemental clerk’s record containing the trial court’s
clarifying order shall be filed with the clerk of this court on or before October 7,
2015.
      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.


                                   PER CURIAM



Panel consists of Chief Justice Frost and Justices Jamison and Busby.
