UPDATE MAY 27, 2021
The Trial Court has filed an “Order Vacating Order Denying Plaintiff’s Motion to Set Status Conference”. The date of the conference is 2pm on June 23, 2021.
REQUEST FOR EXTENSION OF ABATEMENT
Now comes Judge David L. Evans and requests an extension of the abatement in the above referenced appeal in order that l may file the Order Vacating Order Vacating Plaintiffs Motion to Set Status Conference.
This court entered an Abatement Order dated April 19, 2021, which abated this case for the purpose of allowing the undersigned to review the file and determine if any additional order should be entered in the trial court.
The abatement expired yesterday, May 19, 2021. Due to a mistake on my part, I mis-calendared the due date for filing any additional orders.
In entering the Order Denying Motion to Set Status Conference , I stated the plenary power had expired because the order granting the summary judgment had been previously appealed to this Court of Appeals, transferred to the Eighth Court of Appeals, which then dismissed the appeal for want of jurisdiction and issued mandate.
I did not focus on whether the order denying the motion for summary judgment met the requirements of final judgement. Having considered the content of the per curium Abatement Order and the fact the dismissal of the prior appeal was for want of prosecution, as opposed to a ruling on the merits, I have concluded that the order granting summary judgment is not a final judgment and that the best course is to vacate the Order Denying Motion To Set Status Conference so the various motions that have been filed since May 17, 2016, can be considered.
While I intended to enter a final judgment on May 17, 2016, I did not. The appeal of the order and subsequent dismissal did not make the judgement final. Given the lapse of time and the items that have been filed since May 17, 20 16, I believe the most prudent and fairest course is to vacate the order under appeal and proceed wit h the case to final judgement in the trial court.
I have attached a proposed Order Vacating Order Vacating Plaintiffs Motion to Set Status Conference as Exhibit A, which I will sign and enter should the abatement be extended.
Signed this the 20th day of May 2021.
David L. Evans
Judge of the 48th District Court
Pro Se Harriet Nicholson Questions Texas Case Finality
MAY 19, 2021
On March 15, 2021, Harriet Nicholson filed a Petition for Mandamus because the 48th District Court’s Coordinator refused to set “Plaintiff’s Motion to Set Status Conference: for a hearing.
The trial court signed an “Order Denying Motion to Set Status Conference for want of jurisdiction”.
Subsequently, on March 17, 2021 the Second Court of Appeals denied the Petition for Mandamus.
On March 17, 2021, Nicholson filed an Appeal of the “Order Denying Motion to Set Status Conference for want of Jurisdiction”.
On April 19, 2021, the Second Court of Appeals signed an “Abatement Order“ requesting the trial court to clarify whether it intended its No-Evidence Motion for Summary Judgment to be final by May 19, 2021.
The case now awaits 48th District Court, Judge David Evans, Presiding Judge of the Forty Eighth District, responding by May 19, 2021, e.g. today.
McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001) (“Because the judgment does not appear final on its face, and because it did not dispose of the defendants’ claim for attorney fees, it was not an appealable judgment. Accordingly, without hearing oral argument, Tex.R.App.P. 59.1, we reverse the judgment of the court of appeals and remand the case to that court to determine whether to abate the appeal to permit the trial court to render a final judgment, Tex.R.App.P. 27.2, or to dismiss the appeal for want of jurisdiction.”)