Opinion

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.

1

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

2

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

3

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

4