CROSSOVER: Rule 27.2 Can Save a Premature Family-Law Appeal When the Trial Court’s Order Is Not Yet Final

Burgess v. Andersson, 03-26-00462-CV, September 25, 2026.

On appeal from 250th District Court of Travis County

Synopsis

A notice of nonsuit may resolve claims left pending after an interlocutory summary judgment, but the appellate timetable does not begin until the trial court signs a judgment or dismissal order disposing of those claims. Under Texas Rules of Appellate Procedure 27.1 and 27.2, the appellate court may abate and remand for entry of a final order, then treat a previously filed notice of appeal as relating forward to that order.

Relevance to Family Law

This finality problem can arise in divorce, custody, and property litigation whenever an order resolves fewer than all pending claims, parties, interventions, or consolidated proceedings. Examples include a partial summary judgment on characterization or reimbursement claims, an order disposing of claims against one joined party but not another, or a nonsuit of remaining modification or enforcement claims after another claim has been adjudicated. Burgess confirms that filing a nonsuit does not itself start the appellate timetable: counsel must obtain a signed order or final judgment disposing of the remaining matter.

The decision also provides a potential procedural cure. If a family-law appeal is filed before the final dismissal or judgment is signed, the court of appeals may use Rules 27.1 and 27.2 to preserve the appeal, abate the proceeding, and permit the trial court to enter a final order. That remedy is discretionary, however, and should not substitute for a deliberate finality review before filing the notice of appeal.

Case Summary

Fact Summary

The trial court granted a traditional motion for summary judgment filed by Arthur and Rebecca Andersson. The order stated: “Defendants’ traditional motion for summary judgement is GRANTED. This is a final appealable order that disposes of all claims.”

The summary-judgment motion had not been filed by another defendant, Sunniva LLC d/b/a Aqua Clear Pool Care. Accordingly, Burgess’s claims against Sunniva remained pending when the trial court signed the summary-judgment order on April 29, 2026.

Burgess subsequently filed a notice of nonsuit concerning Sunniva on May 7, 2026. He then filed a notice of appeal on May 14, stating that the nonsuit had made the summary-judgment order final and appealable. The appellate record, however, did not contain a signed order dismissing the claims against Sunniva.

The Third Court of Appeals also observed that the summary-judgment order lacked decretal language specifying the relief granted. Although the order characterized itself as final and appealable and stated that it disposed of all claims, it did not state that it disposed of all parties, did not actually dispose of Sunniva, and did not set out the specific adjudicative relief.

Issues Decided

• Whether the April 29 summary-judgment order was final and appealable when claims against another defendant remained pending at the time it was signed.

• Whether the filing of a notice of nonsuit, without a subsequently signed dismissal order or final judgment, commenced the appellate timetable.

• Whether the court of appeals could abate the appeal and remand under Texas Rule of Appellate Procedure 27.2 so the trial court could sign a final and appealable order.

• Whether the previously filed notice of appeal could be treated as premature and relate forward to a later final order under Rules 27.1 and 27.2.

Rules Applied

• Texas Rule of Appellate Procedure 26.1: The deadline for perfecting a civil appeal runs from the signing of the judgment or appealable order, subject to any applicable deadline-extending filings.

• Texas Rule of Appellate Procedure 27.1: A prematurely filed notice of appeal may be treated as filed on the date of, but after, the event that begins the appellate timetable.

• Texas Rule of Appellate Procedure 27.2: An appellate court may permit an order that is not final to be modified so that it becomes final. The court may also treat appellate actions taken before the appealable order was signed as relating to the later order.

• Texas Rule of Appellate Procedure 34.5(c)(1): The appellate record may be supplemented with the trial court’s subsequently signed order.

• Texas Rule of Appellate Procedure 42.3(a): After notice, an appellate court may dismiss an appeal for want of jurisdiction.

• Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995): When a judgment remains interlocutory because claims or parties have not been adjudicated, the appellate timetable runs from the signing of the judgment or order disposing of those claims or parties—not from the filing of the pleading requesting dismissal, severance, or nonsuit.

• In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997): Appellate deadlines run from the signing of a dismissal order rather than the filing of the nonsuit, even when entry of the dismissal order is ministerial.

• In re Guardianship of Jones, 629 S.W.3d 921, 924 (Tex. 2021): An order rendered without a conventional trial is final only if it actually disposes of every pending claim and party or clearly and unequivocally states that it finally disposes of all claims and parties.

• Smith v. McCorkle, 895 S.W.2d 692 (Tex. 1995): A docket entry is not a written order.

• Texas Rule of Civil Procedure 329b(d): In the absence of a signed appealable judgment or order, the trial court retains plenary power.

Application

The April 29 order did not actually dispose of every pending claim and party. The Anderssons’ summary-judgment motion did not encompass Sunniva, and Burgess’s claims against Sunniva remained pending when the court signed the order. The order’s statement that it disposed of “all claims” did not cure the problem because it neither disposed of Sunniva nor clearly and unequivocally stated that it disposed of all claims and all parties.

The appellate court identified a second finality concern: the order granted the summary-judgment motion but did not contain decretal language specifying the relief awarded. An order that merely grants a motion may leave uncertainty about what claims were adjudicated and what relief was rendered. That concern reinforced the need for a properly drafted final order.

Burgess’s later notice of nonsuit disposed of his remaining claims against Sunniva, but the filing did not commence the appellate timetable. Under Farmer and In re Bennett, a signed dismissal order or final judgment was still necessary. Consequently, Burgess’s May 14 notice of appeal preceded the event that would trigger the deadline for perfecting the appeal.

Rather than dismiss immediately, the Third Court concluded that this was an appropriate case for abatement under Rule 27.2. The court remanded to permit Burgess to obtain a signed final and appealable order and directed that the order—or a status report—be filed in a supplemental clerk’s record. The court further explained that, if the trial court signed a final order, the May 14 notice of appeal would be treated as a premature notice under Rule 27.1, and prior appellate actions could be related to the final order under Rule 27.2.

Holding

The court held that the summary-judgment order was not yet final and appealable. It did not actually dispose of the claims against Sunniva, did not clearly state that it disposed of all claims and all parties, and lacked sufficiently specific decretal language.

The court further held that the filing of the notice of nonsuit did not begin the appellate timetable. Under Farmer and In re Bennett, the timetable would begin when the trial court signed an order dismissing the remaining claims or otherwise entered a final judgment.

Finally, the court exercised its authority under Rule 27.2 to abate the appeal and remand for entry of a signed final order. If such an order were signed, the court would treat the existing notice of appeal as premature under Rule 27.1 and give prior appellate actions effect as relating to the final order.

Practical Application

Family-law litigators should distinguish between the substantive effect of a nonsuit and the event that begins the appellate timetable. Even when a nonsuit removes the last unresolved claim, a signed order or judgment remains essential for appellate-deadline purposes.

Several recurring family-law scenarios warrant particular attention:

• Partial summary judgments in divorce proceedings: An order deciding characterization, enforceability of a marital agreement, reimbursement, or a discrete property issue may remain interlocutory if the divorce, conservatorship, support, or other property claims remain pending.

• Joined third parties: Divorce litigation may include trustees, business entities, transferees, lienholders, or other persons claiming an interest in marital property. An order resolving the spouses’ claims may not be final if claims involving a joined party remain unresolved.

• Interventions: A disposition addressing the parties’ claims may remain interlocutory if an intervenor’s claim has not been adjudicated or dismissed.

• Consolidated modification and enforcement proceedings: When modification, enforcement, contempt, or related claims are heard together, counsel should verify whether every civil claim in the case has been expressly resolved. Contempt rulings also present separate reviewability concerns and should not be assumed to merge into an ordinary appeal.

• Nonsuit of remaining claims: If a party nonsuits the remaining claim after an interlocutory ruling, counsel should submit a dismissal order or revised final judgment immediately. Do not calculate the notice-of-appeal deadline solely from the filing date of the nonsuit.

• Ambiguous decrees and orders: A decree should state the relief awarded, identify the claims and parties disposed of, and use operative decretal language. Merely stating that a motion is “granted” or labeling an order “final and appealable” may not reliably establish finality.

• Premature notices of appeal: If a notice has already been filed, counsel should promptly identify the missing finality component, seek a signed order in the trial court, and request abatement rather than assume the appellate court will dismiss or automatically preserve the appeal.

Rule 27.2 is a safety mechanism, not an automatic entitlement. The appellate court may dismiss an appeal for want of jurisdiction rather than hold it open indefinitely. The better practice is to secure a facially final, signed order before relying on relation-forward principles.

Checklists

Finality Review Before Filing a Family-Law Appeal

• Identify every live pleading in the case.

• Identify every pending claim for affirmative relief.

• Confirm the disposition of all counterclaims, cross-claims, interventions, and third-party claims.

• Confirm that all joined parties have been expressly addressed.

• Determine whether any severed or consolidated matter affects finality.

• Review whether unresolved attorney’s fees, sanctions, or declaratory claims remain pending.

• Confirm that the order contains operative decretal language stating the relief granted or denied.

• Confirm that the order either actually disposes of every claim and party or clearly and unequivocally states that it finally disposes of all claims and all parties.

• Verify the date on which the judge signed the final judgment or appealable order.

• Calculate appellate deadlines from the signed order, accounting for any timely deadline-extending motion.

Nonsuiting the Last Remaining Claim

• Determine whether the claim may be nonsuited under the governing procedural rules.

• Confirm whether another party has a pending claim for affirmative relief that will survive the nonsuit.

• File the notice of nonsuit with a precise identification of the claims and parties affected.

• Prepare and promptly submit a proposed dismissal order or revised final judgment.

• Obtain the judge’s signature rather than relying on the filing date, a docket notation, or an oral ruling.

• Ensure that the signed order addresses the remaining party or claim and contains clear decretal language.

• Request a certified or file-stamped copy of the signed order.

• Recalculate all appellate deadlines from the signing date of the final order.

Responding to a Premature Notice of Appeal

• Determine exactly which claim, party, or requested relief prevents finality.

• Notify the appellate court accurately about the jurisdictional defect.

• Request abatement and remand under Texas Rule of Appellate Procedure 27.2 when entry of a final order can cure the defect.

• Ask the trial court to sign a final dismissal order or modify the appealed order to make it final.

• Ensure the trial court understands that it retains plenary power in the absence of a signed final judgment.

• Arrange for a supplemental clerk’s record containing the signed final order.

• Calendar every deadline established by the appellate court’s abatement order.

• Confirm that the appellate docket reflects reinstatement after the supplemental record is filed.

• Evaluate whether an amended notice of appeal is prudent, even if Rule 27.1 may preserve the original notice.

Drafting a Final Divorce Decree or SAPCR Order

• Use decretal language that grants, denies, dismisses, or otherwise disposes of each claim.

• Identify every party whose rights or claims are being adjudicated.

• Address all property, conservatorship, possession, support, reimbursement, fee, and other pleaded claims.

• Resolve claims involving intervenors and joined third parties.

• Avoid relying exclusively on a statement that a motion is “granted.”

• Include an unequivocal finality clause when a final judgment is intended.

• Confirm that the decree does not leave substantive relief for later adjudication.

• Distinguish ministerial post-judgment implementation from unresolved judicial decisions.

• Conduct a final comparison between the live pleadings and the decretal provisions before presenting the order for signature.

Citation

Burgess v. Andersson, No. 03-26-00462-CV (Tex. App.—Austin Sept. 25, 2026, order & mem. op.) (per curiam).

Full Opinion

Read the full opinion in Burgess v. Andersson.

Family Law Crossover

The crossover mechanism is the interaction between Rules 27.1 and 27.2 when a family-law order is substantively close to final but lacks a signed disposition of a remaining claim or party. Rule 27.2 allows the appellate court to abate and remand so the trial court may modify the appealed order or sign an additional order that makes the judgment final. Once that final order is signed, Rule 27.1 permits the premature notice of appeal to be treated as filed on the date of, but after, the event that triggered the appellate timetable, while Rule 27.2 permits prior appellate proceedings to be treated as relating to the final order.

In a divorce, this procedure could apply when the court resolves the principal property and marital claims but a claim involving a joined business entity remains pending and is later nonsuited. In a SAPCR, it could arise when an order resolves conservatorship and support but does not dispose of a pending intervention or consolidated civil claim. In a post-divorce proceeding, it could arise when the court adjudicates a modification claim while an accompanying enforcement or fee claim remains unresolved.

The procedural sequence is critical: identify the unresolved matter, obtain a signed dismissal order or final judgment, supplement the appellate record, and ask the court of appeals to give the premature notice and prior appellate actions relation-forward effect. Until the signed final order exists, the appellate deadline has not begun merely because a nonsuit was filed, and the trial court retains authority to enter or modify the order necessary to establish finality.

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