      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00563-CV



                          Cheryl Rogers and Don Rogers, Appellants

                                                  v.

                      City of Austin and Delta Air Lines, Inc., Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
         NO. D-1-GN-09-001135, HONORABLE TIM SULAK, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellants Cheryl Rogers and Don Rogers appeal the trial court’s order granting

summary judgment for appellee Delta Air Lines, Inc. Appellants have filed a motion to abate their

appeal with this Court. They state that the order is not a final appealable order because it was not

severed from claims for contribution that exist between Delta and appellee the City of Austin. See

Teer v. Duddlesten, 664 S.W.2d 702, 703-04 (Tex. 1984) (without severance, summary judgment

which does not dispose of all parties and issues is interlocutory and not appealable). Appellants also

certify that appellees do not oppose their motion to abate.

               Texas Rule of Appellate Procedure 27.2 provides that an appellate court may permit

a party to cure a prematurely filed appeal by allowing “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. We, therefore, grant appellants’
motion to abate this appeal to give them 60 days after the date of this order to take action to cure the

jurisdictional defect and to pay for and request a supplemental clerk’s record containing a signed

order of severance or an order otherwise disposing of remaining claims. Failure to comply with this

order will result in dismissal of this appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a);

Iacono v. Lyons, 6 S.W.3d 715, 717 (Tex. App.—Houston [1st Dist.] 1999, order).



                                        __________________________________________

                                        Melissa Goodwin, Justice

Before Justices Puryear, Rose and Goodwin

Abated

Filed: October 18, 2011




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