Abatement Order filed April 9, 2015.




                                      In The

                    Fourteenth Court of Appeals
                          NO. 14-15-00061-CV_
                   B. MAHLER INTERESTS, LP, Appellant

                                        V.

                  DMAC CONSTRUCTION, INC., Appellee


                   On Appeal from the 152nd District Court
                            Harris County, Texas
                      Trial Court Cause No. 2012-64035


                           ABATEMENT ORDER

      On January 14, 2015, appellant filed a notice of appeal from a judgment
signed October 17, 2014. The clerk’s record has not been filed. On February 25,
2015, the Harris County District Clerk’s office notified this court that it had not
received payment for preparation of the record. In response to this court’s notice
that the appeal was subject to dismissal unless appellant provided the court with
proof of payment for the record, appellant advised this court that the trial court’s
judgment is not final because its counterclaim has not been resolved. Appellant
asserts that its notice of appeal was filed prematurely in an abundance of caution
and requests that we abate the appeal until the trial court disposes of the
counterclaim.
      The Texas Supreme Court has advised that if an appellate court is uncertain
about the intent of an order 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). 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 and to permit the parties to obtain an order disposing of the
counterclaim, if necessary. A supplemental clerk=s record containing the trial
court’s clarifying order and any findings regarding finality of the summary
judgment shall be filed with the clerk of this court on or before May 8, 2015. See
Tex. R. App. P. 27.3.

      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 also will consider an
appropriate motion to reinstate the appeal filed by either party, or the court may
reinstate the appeal on its own motion.

                                   PER CURIAM

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