Opinion
14-23-00674-CV
12-12-2023
KAFI, INC., Appellant v. NATIONSTAR MORTGAGE, LLC D/B/A MR. COOPER, CITIMORTGAGE, INC., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Appellees
On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Cause No. 20-DCV-278864
ABATEMENT ORDER
PER CURIAM
Before the court is appellee CitiMortgage, Inc.'s unopposed motion to abate appeal to resolve a question about whether the trial court has entered a final judgment. The motion centers on three orders signed by the trial court in August 2023. In the first order, signed in an amended form on August 9th, the trial court announced among other things that it considered a summary judgment motion filed by CitiMortgage, "determined that the [m]otion is meritorious and is therefore in all things granted," and ordered that appellant Kafi, Inc. and co-plaintiff Brian Brand (who is not a party to this appeal) take nothing "by way of all of their claims and that all costs of court are taxed against [Kafi and Brand]." That order moreover expressly declined to award CitiMortgage any of the attorney's fees it requested in association with the case. On August 16th, the trial court signed another order announcing that it had considered another summary judgment motion filed by appellants Mortgage Electronic Registration Systems, Inc. and Nationstar Mortgage, LLC d/b/a Mr. Cooper, and that their summary judgment motion was granted, thereby "disposing] of all causes of action asserted against [those two appellants] in this suit." But also on August 16th, the trial court signed another order that again announced CitiMortgage's summary judgment motion had been "considered" (the order's text does not clarify whether the motion was being reconsidered), declared that the motion "against . . . Brand is meritorious on no-evidence grounds[] . . . and is therefore granted in part on all of . . . Brand's claims against . . . CitiMortgage." That order also ordered that Brand take nothing "by way of all of his claims against . . . CitiMortgage[] . . . and that all costs of court relating to those claims are taxed against . . . Brand." That order is silent about the status of any claims Kafi raised against CitiMortgage, as well as whether or not Brand and Kafi are liable for any of CitiMortgage's attorney's fees. It is similarly unclear from the three orders whether Nationstar Mortgage and Mortgage Electronic Registration Systems were awarded costs in association with the claims asserted against them.
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 it has issued a final judgment in this case and to permit the parties to obtain an order or orders finally disposing of Kafi's claims against CitiMortgage, CitiMortgage's request for attorney's fees against Kafi and Brand, and the matter of whether costs are awarded to Nationstar Mortgage and Mortgage Electronic Registration Systems. A supplemental clerk's record containing the trial court's clarifying order(s) shall be filed with the clerk of this court on or before January 11, 2024.
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.
Panel Consists of Justices Jewell, Spain, and Wilson. (Spain, J., concurs in the order for the reasons explained in Catt v. Middleton, No 14-22-00881-CV, 2023 WL 3856180 (Tex App-Houston [14th Dist] Apr 4, 2023, order) (Spain, J, concurring).)