                            COURT OF APPEALS FOR THE
                       FIRST DISTRICT OF TEXAS AT HOUSTON

                       ORDER ON CONTINUING ABATEMENT

Appellate case name:     Concierge Nursing Centers, Inc. and Houston Concierge
                         Care, L.P. v. Antex Roofing, Inc., Nevco Waterproofing,
                         Inc., Conex Constructors, Inc., and Mitchell Chuoke
                         Plumbing, Inc.

Appellate case number: 01-11-00882-CV

Trial court:             80th District Court, Harris County

Trial court case number: 2008-64390

       The Court’s records indicate that the Court may not have jurisdiction over
this appeal because not all claims and parties have been disposed of. The record
filed in the Court reflects the following facts:

      1. Concierge Nursing Centers, Inc. and Houston Concierge Care, L.P.
         (collectively “Concierge” or “Concierge plaintiffs”) jointly asserted two
         causes of action against each of the appellees, who were defendants in
         the trial court (collectively the “Subcontractors”): (1) breach of a
         contractual obligation of indemnity originally owed to a third-party
         (“First Cause of Action”), and (2) breach of a contractual obligation to
         make a third-party an additional insured (“Second Cause of Action”).

      2. In the trial court, the Concierge asserted an additional cause of action
         against other defendants who are not parties to this appeal, namely,
         Travelers Property Casualty Company of America, Evanston Insurance
         Company, Amerisure Insurance Company, and Nautilus Insurance
         Company (collectively the “Insurers”). Moreover, several other parties
         who are not parties to this appeal—namely, Bay 4 Capital, Edward L.
         Abrams, the Edward L. Abrams Living Trust, Brock T. Strom, and Claire
         A. Strom (collectively the “Intervenors”)—intervened in the case and
         asserted one or more causes of action against Conex.




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3. On May 6, 2010, Nevco and Conex each separately moved for partial
   summary judgment on the First Cause of Action and the Second Cause of
   Action.

4. On May 6, 2010, Antex moved for partial summary judgment on the
   Second Cause of Action, but not on the First Cause of Action.

5. On June 9, 2010, Mitchell Chuoke moved for partial summary judgment
   on the First Cause of Action and the Second Cause of Action.

6. On June 25, 2010, Antex again moved for partial summary judgment, this
   time on the First Cause of Action, but not on the Second Cause of Action.

7. On August 19, 2010, Mitchell Chuoke again moved for partial summary
   judgment, again on the First Cause of Action and the Second Cause of
   Action.

8. On August 20, 2010, the trial court signed the “Order on [Nevco’s]
   No-Evidence and Traditional Motion for Summary Judgment,” ordering
   that the Concierge plaintiffs “do have and take nothing” from Nevco in
   the case.

9. On August 20, 2010, the trial court signed the “Order Granting Conex
   Constructor Inc.’s Motion for Partial Summary Judgment,” ordering that
   Concierge plaintiffs “do have and take nothing from Conex Constructors,
   Inc.” This order also orders that the Intervenors “do have and take
   nothing from Conex Constructors, Inc.”

10.On September 14, 2010, the trial court signed the “Order Granting
   Mitchell Chuoke Plumbing, Inc.’s Traditional and No-Evidence Motion
   for Summary Judgment,” ordering that the Concierge plaintiffs “take
   nothing” from Mitchell Chuoke in the case.

11.On September 16, 2011, the trial court signed the “Order on Partial
   Summary Judgment and Severance,” ordering that the Concierge
   plaintiffs “do have and take nothing from Antex Roofing, Inc.” for the
   First Cause of Action and that the Concierge plaintiffs “have and take
   nothing against Antex Roofing, Inc. on this cause of action.” This order
   does not reflect any disposition on the Second Cause of Action against



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         Antex, nor does it reflect any order of severance.

      12.On October 7, 2011, Concierge filed notice of appeal from the two orders
         signed on August 20, 2010, the order signed on September 14, 2010, and
         the order signed on September 16, 2011.

      In its appellate briefing, Concierge states that it nonsuited the Insurers and
therefore presents no issue on appeal regarding its causes of action against the
Insurers. Concierge also states that it waives on appeal any issue regarding the
Second Cause of Action against the Subcontractors. However, the record on appeal
does not reflect that Concierge’s causes of action against the Insurers were either
nonsuited or otherwise disposed of. Moreover, the record does not reflect that the
Second Cause of Action against Antex was disposed of.

       Generally, an appeal may be taken only from a final judgment. See Lehmann
v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). “A judgment is final for
purposes of appeal if it disposes of all pending parties and claims in the record,
except as necessary to carry out the decree.” Id. The record in this appeal does not
reflect that the trial court disposed of all pending parties and claims because there
is no indication that Concierge nonsuited the Insurers and that the Second Cause of
Action against Antex was disposed of.

      Accordingly, the Court rules as follows:

      1. Concierge may file a written response to this order that provides a
         detailed explanation with citations to relevant portions of the record,
         statutes, rules, and case law to show that, on the basis of the record
         presently filed, this Court has jurisdiction over the appeal.

      2. Alternatively, if Concierge does not file the response contemplated in
         paragraph (1) above, Concierge may file a supplemental record
         demonstrating that all pending parties and claims in the trial court record
         were disposed of prior to Concierge having filed its notice of appeal.

      3. Alternatively, if Concierge does not file the response contemplated in
         paragraph (1) above or the supplemental record contemplated in
         paragraph (2) above, Concierge may file in the trial court a nonsuit
         against the Insurers, a nonsuit of its Second Cause of Action against
         Antex, or both. In order for the judgment to then be final and appealable,
         the trial court must either sign an order granting the nonsuit(s) or a


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         judgment memorializing the nonsuit(s), which is a ministerial act. See
         Iacono v. Lyons, 6 S.W.3d 715, 716–17 (Tex. App.—Houston [1st Dist.]
         1999, order) (per curiam). Concierge may then file a supplemental record
         demonstrating that by way of the nonsuit(s), all pending parties and
         claims in the trial court record are disposed of. We may then treat the
         jurisdictional defect, if any, as cured and resolve the appeal. See id.
         (citing TEX. R. APP. P. 27.2).

      4. We retain continuing jurisdiction over this appeal, but we abate the
         appeal to give Concierge an opportunity either to demonstrate that the
         Court has jurisdiction over this appeal or to cure the jurisdictional defect,
         if any. If a response as contemplated in paragraph (1) above, or a
         supplemental record as contemplated in paragraphs (2) or (3) above, is
         not filed by 5:00 p.m. on March 28, 2013, the Court may dismiss the
         appeal for want of jurisdiction without further notice. To the extent that
         we may dismiss the appeal, this order constitutes notice of intent to
         dismiss under Texas Rule of Appellate Procedure 42.3. See Iacono, 6
         S.W.3d at 717 (relying on TEX. R. APP. P. 42.3).

      It is so ORDERED.


Judge’s signature: /s/ Harvey Brown
                    Acting individually


Date: March 7, 2013




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