In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-25-00399-CV
JOSE SAENZ, APPELLANT
V.
KYLE BOWMAN AND MCDONALD’S CORPORATION, APPELLEES
On Appeal from the 72nd District Court
Lubbock County, Texas
Trial Court No. DC-2024-CV-0966, Honorable John C. Grace, Presiding
August 19, 2026
ORDER OF ABATEMENT AND REMAND
Before DOSS and YARBROUGH and PRATT, JJ.
Pending before this Court is the purported appeal of the trial court’s summary
judgment signed on November 20, 2025. Because uncertainties remain concerning our
jurisdiction over this cause, we abate the appeal, remove it from our active docket, and
remand the matter to the trial court.
BACKGROUND
On July 25, 2024, Jose Saenz filed suit against Kyle Bowman and McDonald’s
Corp. McDonald’s answered and actively participated in litigation. Bowman, however,
made no appearance. On July 2, 2025, McDonald’s filed its traditional and no-evidence
motion for summary judgment. Continued several times, the trial court ultimately heard
the motion on November 13, 2025.
That same day, Saenz filed his motion for alternative service, alleging that Saenz
initially believed that Bowman had been properly served only to discover later that the
return of service was flawed. Since realizing the error, Saenz alleged, several
subsequent attempts to serve Bowman had been made without success. The record
indicates that the motion for alternative service was not expressly ruled upon.
Approximately one week later, on November 20, 2025, the trial court signed its
order granting McDonald’s traditional and no-evidence motion for summary judgment.
More specifically the trial court made the following pronouncements:
It is therefore ORDERED, ADJUDGED AND DECREED that McDonald’s
Corporation’s Traditional and No Evidence Motion for Summary Judgment
is granted. It is therefore ORDERED, ADJUDGED AND DECREED by the
Court that Plaintiff’s claims in the above-entitled and numbered cause
against Defendant McDonald’s Corporation are hereby dismissed with
prejudice to the refiling of same in any form.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that any crossclaims or cross actions pending herein are dismissed with prejudice to the
refiling of same in any form. All other relief not herein granted is hereby
denied. This Judgment shall be final for all purposes of all claims and
actions herein. Costs are taxed against the party incurring same.
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Saenz timely filed his notice of appeal, and the parties have submitted briefs in the cause.
The Court has begun its review of the cause and notes a potential jurisdictional defect.
APPELLATE JURISDICTION
The jurisdictional ambiguity centers on Bowman, who appears to never have been
served. He has not appeared in this matter, and the trial court’s summary judgment does
not specifically refer to Bowman or claims against Bowman.
Though the issue of our jurisdiction over this cause has not been raised by the
parties, we are nonetheless obligated to consider sua sponte issues that may affect our
jurisdiction. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam);
Buffalo Royalty Corp. v. Enron Corp., 906 S.W.2d 275, 277 (Tex. App.—Amarillo 1995,
no writ). “An appellate court lacks jurisdiction to review an interlocutory order unless a
statute specifically authorizes an exception to the general rule, which is that appeals may
only be taken from final judgments.” Qwest Commc’ns Corp. v. AT&T Corp., 24 S.W.3d
334, 336 (Tex. 2000) (per curiam).
In cases where there is no conventional trial on the merits and no statutory
exception applies, a judgment is final for purposes of appeal only if (1) it actually disposes
of all claims and parties before the court, regardless of its language or (2) the order states
with unmistakable clarity that it is a final judgment. See Guajardo v. Conwell, 46 S.W.3d
862, 863–64 (Tex. 2001) (per curiam); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192
(Tex. 2001).
Here, we have a summary judgment that appears to dispose of all claims against
McDonald’s, but it does not expressly dispose of claims against Bowman, the ostensibly
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unserved, non-appearing co-defendant. The judgment specifically dismisses with
prejudice Saenz’s “claims . . . against Defendant McDonald’s Corporation.” It goes to
declare finality for all purposes of “all claims and actions herein,” without decretal
language touching on the disposition of all parties.
In such a situation, we can consider the judgment to be final against the unserved,
non-appearing Bowman if the record establishes the following conditions:
(1) The trial court granted summary judgment expressly disposing of the
plaintiff’s claims against all parties named in the petition except one;
(2) So far as can be determined from the record, the remaining defendant was
never served with citation and did not file an answer; and
(3) Nothing in the record indicates the plaintiff ever expected to obtain service
upon the remaining party.
See Rape, 139 S.W.3d at 674 (determining that analysis as outlined in Youngstown Sheet
& Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962), still applied to the particular facts,
post-Lehmann).
If we find that the record establishes all three of the Penn conditions, then “the
case stands as if there had been a discontinuance as to [the unserved party], and the
judgment is to be regarded as final for the purpose of appeal.” Rape, 139 S.W.3d at 674
(quoting Penn, 363 S.W.2d at 232); see Wedgeworth v. City of Amarillo, No. 07-15-00301-CV, 2016 Tex. App. LEXIS 5241, at *4 (Tex. App.—Amarillo May 17, 2016, pet.
denied) (mem. op.) (applying Penn analysis and concluding judgment was final when
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“[t]he record provide[d] no indication [plaintiff] intended to proceed against [two unserved
defendants]”).
ANALYSIS
The first two prongs of the Penn analysis have been met. The trial court’s summary
judgment expressly disposed of Saenz’s claims against McDonald’s but did not expressly
dispose of claims against Bowman. Also, the record suggests Bowman was unserved
and did not file an answer. For the final prong of the analysis, we must evaluate whether
the record demonstrates Saenz held no expectation or intention of serving Bowman.
When Saenz discovered that Bowman had not been properly served, he enlisted
a new process server who, per his affidavit, made several attempts to effectuate service,
to no avail. Saenz then moved for the trial court’s leave to serve Bowman by alternative
means. He filed this motion in November 2025 and only days before the trial court granted
summary judgment. So, at the time judgment was entered, it would appear from Saenz’s
efforts and his motion for alternative service that Saenz expected or intended to serve
Bowman. Contrast Rebector v. Angleton Danbury Hosp. Dist., No. 14-08-00811-CV,
2010 Tex. App. LEXIS 5311, at *5 (Tex. App.—Houston [14th Dist.] July 8, 2010, pet.
denied) (mem. op.) (when record contained some indication that plaintiff expected or
intended to obtain service on defendant, concluding that Penn conditions were not
satisfied and noting that case was abated to permit parties to obtain final, appealable
judgment), with Sondock v. Harris Cty. Appraisal Dist., 231 S.W.3d 65, 67 n.1 (Tex.
App.—Houston [14th Dist.] 2007, no pet.) (in cause where summary judgment was
granted in favor of one defendant without reference to another, unserved defendant,
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proceeding to merits of case when, ostensibly, record supported conclusion that plaintiff
did not expect to obtain service on unserved defendant), and McDaniels v. Mittemeyer,
No. 07-03-00234-CV, 2004 Tex. App. LEXIS 2612, at *1 n.2 (Tex. App.—Amarillo Mar.
24, 2004, pet. denied) (mem. op.) (when nothing of record indicated that plaintiff
“continued to attempt or expected to obtain service upon” a co-defendant, deeming
summary judgment against all other defendants as final for purposes of appeal).
Thus, we are unable to conclude that the record establishes Saenz did not expect
or intend to obtain service on Bowman. The judgment fails to satisfy the third condition
of the Penn standard, and we are unable to definitively determine the finality of the
summary judgment signed November 20, 2025.
INSTRUCTIONS ON REMAND
When an appellate court is uncertain as to the trial court’s intent to finally dispose
of all claims and parties, it may abate the appeal to permit the trial court to clarify. See
Lehmann, 39 S.W.3d at 206; see also TEX. R. APP. P. 27.2 (authorizing intermediate
appellate court to abate an order to be modified so as to be made final); Nguyen v.
Nguyen, No. 07-24-00093-CV, 2024 Tex. App. LEXIS 5961, at *6 (Tex. App.—Amarillo
Aug. 19, 2024, order) (abating and remanding case when conflicting record evidence
concerning finality of judgment “preclude[d] our threshold determination of appellate
jurisdiction and the scope of the parties and issues before us”).
Accordingly—and without reaching the merits of the trial court’s judgment signed
November 20, 2025, or passing on substantive matters related to service—we abate this
appeal and remand the case to the trial court for clarification on the finality of its summary
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judgment. Accord Palma v. Young, 601 S.W.3d 799, 801 (Tex. 2020) (per curiam);
Lehmann, 39 S.W.3d at 206. The trial court is free to determine the appropriate and
applicable means by which it could make clear that its summary judgment is final as to all
parties and all claims and may include findings of fact and conclusions of law, should it
deem them necessary, to inform our jurisdiction over Saenz’s appeal. Alternatively, or
additionally, the parties may take the necessary step—be it severance, non-suit, or some
other means—to obtain a final judgment if the facts developed below so compel.
The trial court shall cause to be filed in this Court a supplemental clerk’s record
which contains additional filings by the parties, if any; the trial court’s orders, if any; and
any findings and conclusions that the trial court may deem relevant. The supplemental
clerk’s record should be filed with the Clerk of this Court on or before September 18, 2026.
IT IS SO ORDERED.
Per Curiam
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