Howard v. Kimball, 07-24-00388-CV, March 11, 2026.
On appeal from 43rd District Court, Parker County, Texas.
Synopsis
The Seventh Court of Appeals dismissed this appeal for want of jurisdiction after the trial court, acting under a TRAP 27.2 abatement, clarified that an ambiguous order containing “dismissal” language was actually intended to deny a plea to the jurisdiction and retain the case for trial. Because the amended orders did not dispose of all claims and parties, they constituted non-appealable interlocutory orders rather than a final judgment.
Relevance to Family Law
In the high-stakes environment of Texas family law, “accidental finality” is a constant threat when drafting complex orders on special appearances, pleas to the jurisdiction in SAPCR modifications, or Rule 91a motions in marital torts. A stray sentence suggesting a “dismissal” in an order otherwise intended to be interlocutory can inadvertently trigger the appellate clock or divest a trial court of plenary power. This case provides a strategic roadmap for using TRAP 27.2 to correct such clerical or drafting paradoxes, ensuring that a family law case is not prematurely terminated or delayed by jurisdictional ambiguity.
Case Summary
Fact Summary
Cody Howard and CMH Group, LLC initiated a legal malpractice suit against Lacy Kimball. Kimball responded by filing a plea to the jurisdiction and a motion to dismiss under Rule 91a. The trial court subsequently signed an order that created a jurisdictional contradiction: while it appeared to overrule the plea to the jurisdiction, it also included language stating the suit was “dismissed.” Howard, facing the potential finality of a dismissal order, timely appealed. Recognizing the inherent conflict within the four corners of the order, the Seventh Court of Appeals (on transfer from the Second Court) abated the appeal and remanded the cause to the trial court. The purpose of this remand was specifically to allow the trial court to clarify whether it intended to render a final, appealable judgment or an interlocutory order. On remand, the trial court issued amended orders explicitly denying Kimball’s motions and stating that the matter would “continue to trial.”
Issues Decided
- Does an appellate court have jurisdiction over an appeal when the trial court, following a TRAP 27.2 abatement, clarifies that an ambiguous order was not intended to be a final judgment?
- Whether the inclusion of the phrase “this matter shall continue to trial” in an amended order sufficiently negates the “clear and unequivocal” finality requirement under Lehmann.
Rules Applied
- Texas Rule of Appellate Procedure 27.2: This rule allows an appellate court to treat an order as being signed before its final form and permits the trial court to correct or clarify an order while an appeal is pending to resolve jurisdictional uncertainties.
- Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001): The seminal Texas Supreme Court case holding that a judgment is only final if it disposes of all pending claims and parties, or if it contains a clear and unequivocal statement of finality.
- Texas Government Code § 73.001: The statutory authority for the Supreme Court of Texas to transfer cases between courts of appeals for docket equalization, requiring the transferee court to apply the transferor court’s precedent.
Application
The court’s analysis centered on the “finality” of the judgment being appealed. Under the Lehmann standard, because there had been no conventional trial on the merits, the order could only be final if it disposed of every claim and party or stated so unequivocally. The original order was a “jurisdictional hybrid” that both denied the defense’s requested relief and dismissed the plaintiff’s case.
The Court of Appeals utilized TRAP 27.2 as a procedural bridge, allowing the trial court to resolve the ambiguity it had created. Once the trial court issued the supplemental record containing the amended orders, the legal story changed: the trial court affirmatively stated it intended to retain jurisdiction and specifically directed that the case proceed to trial. The appellate court reasoned that these clarifications cured the “accidental finality” of the original order. Since the corrected orders were clearly interlocutory—denying a plea to the jurisdiction and a 91a motion without a final disposition of the merits—the appellate court was required to dismiss the appeal.
Holding
The Court of Appeals held that it lacked jurisdiction because there was no final, appealable judgment. The court determined that the trial court’s amended orders, issued during the abatement period, clearly demonstrated an intent to retain jurisdiction and proceed to a trial on the merits.
The court further held that when a trial court clarifies its intent to keep a case on the active docket via a TRAP 27.2 remand, any prior ambiguity regarding the finality of the order is resolved in favor of continued trial court jurisdiction. Consequently, the appeal was dismissed for want of jurisdiction.
Practical Application
For the family law litigator, this case serves as a vital precedent for correcting “template errors.” Often, a proposed order on a motion to vacate or a plea to the jurisdiction is pulled from a form book and may include “dismissal” language that the judge signs without realizing it conflicts with their ruling from the bench.
- Tactical Abatement: If you receive an order that denies your opponent’s motion but includes a “dismissal” clause, do not wait for a motion for en banc reconsideration or a restricted appeal. Move the appellate court to abate under TRAP 27.2 immediately to fix the order.
- Drafting Precision: When drafting orders that deny a dispositive motion, always include the phrase: “This order is interlocutory and the matter shall continue to trial.” This language was the “silver bullet” in Howard that defeated appellate jurisdiction.
- Appellate Preservation: If you are the party seeking to maintain the appeal, you must ensure that your notice of appeal is updated or that you challenge the new orders signed during the abatement if they adversely affect your jurisdictional standing.
Checklists
Defeating Accidental Finality
- Audit the Order: Check for “dismissed with prejudice” or “all relief not granted is denied” language in an order that was supposed to be a simple denial of a motion.
- Compare with the Record: Determine if the trial court’s oral rendition contradicts the written “finality” language.
- Invoke TRAP 27.2: File a motion in the Court of Appeals to abate and remand for clarification rather than risk a dismissal of the entire case on the merits due to a clerical finality trap.
- Secure the Supplemental Record: Ensure the trial court clerk files the amended, clarified order with the Court of Appeals to finalize the jurisdictional fix.
Drafting Non-Final Orders
- Express Retention of Jurisdiction: Explicitly state: “This matter remains on the active docket of this Court.”
- Avoid “Mother Hubbard” Clauses: In interlocutory family law orders (like temporary orders or denials of jurisdictional pleas), never use the phrase “all relief not granted is denied.”
- Specific Directives: Include a trial date or a directive to “continue to trial” to mirror the successful language used in the Howard case.
Citation
Howard v. Kimball, 07-24-00388-CV (Tex. App.—Amarillo Mar. 11, 2026, no pet. h.).
Full Opinion
Family Law Crossover
This ruling can be weaponized in Texas divorce or custody cases to prevent “judgment by ambush.” Imagine a scenario where a trial court signs a “Standard Visitation Order” that, due to a clerical error in the “Finality” section, purports to dismiss all other claims for property division or child support. Under Howard, the party disadvantaged by this “accidental finality” can use TRAP 27.2 to force a clarification. Strategically, if you are the party who wants the case to proceed (the “Appellee” in the jurisdictional sense), you can use this abatement process to strip the appellate court of jurisdiction, thereby forcing the case back to the trial court for a merit-based resolution rather than allowing an opponent to use a clerical error to freeze litigation via a premature appeal. It turns a potential procedural catastrophe into a routine clerical correction.
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