C OURT OF A PPEALS FOR THE

F IRST D ISTRICT OF T EXAS AT H OUSTON

O RDER OF A BATEMENT

Appellate case name: West I

- 10 Volunteer Fire Department v. Harris County

Emergency Services District No. 48

Appellate case number: 01

- 1 7

- 00 0 38

- CV

Trial court case number: 201 5

- 38121

Trial court: 215 th District Court of Harris County

On January 13, 2017 , appellant, West I

- 10 Volunteer Fire Department , filed a

notice of appeal from the trial court’s interlocutory order, signed on December 15, 2016,

granting plaintiff’s traditional and no

- evidence motion for summary judgment and order

of final judgment

. See T EX

. R. A PP

. 26.1 (b)

. This Court’s February 9, 2017 Order had

granted appellant’s motion for a 30

- day extension of time to file evidence of payment of

the appellate record fees because it claimed that the order was not final, but that the trial

court would soon rule on Harris County’s motion to sever and for a new trial.

On March 7, 2017, appellant filed this motion to abate appeal until May 12,

2017

, because i t intends to file a motion for new trial of the final judgment , signed

on February 13, 2017, which would extend appellant’s appellate deadline

. See T EX

. R. A PP

. P. 26.1(a). Although the clerk’s record has yet to be filed, if the trial court has

signed a final, appealable judgment w hich replaced the December 15, 2016 interlocutory

order, “the appellate court must treat the appeal as from the subsequent

. . . judgment and

may treat actions relating to the appeal of the first order

. . . as relating to the appeal of

the subsequent

. . . judgment

. ” T EX

. R. A PP

. P. 27.3. This subsequent judgment “may be

included in the original or supplemental record

, ” but “any party may nonetheless appeal

from the subsequent . . . judgment.” Id.

Accordingly, appellant’s m otion is g r anted , and we a bate the appeal and r e ma n d

to p ermit the t rial court to clarify whether the December 15, 2016 order is final and, if

not, to permit appellant to obtain an order disposing of its motion for new trial , if

any, regarding the February 13, 2017 final judgment , or to file a new appeal

. See

Le h mann v. H

a r

- Con Cor

p

. , 39 S

. W

. 3d 191, 206 (Tex. 2001 ); (citing T EX

. R. A PP

. P. 27.2)(“If the appellate court is u n ce r tain about the inte n t of the order, it can abate the appeal

to pe r m it clari f

ication b y the t rial court

. ”); T EX

. R. A PP

. P. 27.3

. An original c lerk’s

re c ord including, among other documents, any f inal judgment or o rd er

, shall be f iled by

the district clerk by May 12, 2017

. If a n original clerk’s r e cord is not f iled with t his

Court by May 12, 2017

, and no extension is requested by the district clerk, appel l ant sha l l

promptly n oti f y this Court of the s tatus of the proceed i n g s within ten days of this

deadline

.

The app e al is aba t ed, tr eated as a closed case, and r e moved f rom this Court’s active

docket. The appeal wi l l be reinstated on this C ourt’s active dock e t w h en the original

clerk’s reco r d i s f

iled in this Court. The Cou r t will also co n sider a motion to reinstate the

a ppeal f iled b y either pa r t y

, or t h e Court m a y r einstate t he appeal on i t s o w n m o tion. It

is the respo n sibili t y of a n y par t y s e e king abatement to r e quest a hearing date f rom the tri a l

court a nd to schedule a hearin g

, if a hearing is requir e d, in c o m pli a nce with this Court ’ s

order. If the parties do requ e st a hearin g

, t he tri a l court c oordinator s h all set a hea r i n g

date and n oti f y t h e p a rties of such da t e.

It is so ORDERED.

Judge’s signature: /s/ Laura C. Higley

 Acting individually Acting for the Court

Date: M a rch 14, 2 017