Akiyode v. McGee, 14-25-00787-CV, February 26, 2026.
On appeal from the 434th Judicial District Court of Fort Bend County, Texas.
Synopsis
The Fourteenth Court of Appeals clarified that Texas Rule of Appellate Procedure 27.2 is a tool for ministerial corrections and minor clarifications of an order’s finality, not a jurisdictional "waiting room" for pending trials. The Court held that it lacks the authority to abate a premature appeal to allow a trial court to resolve substantive, outstanding claims—such as those set for an upcoming jury trial—ruling instead that such appeals must be dismissed for want of jurisdiction.
Relevance to Family Law
In complex family law litigation, practitioners frequently deal with "rolling" orders, bifurcated trials, or partial summary judgments regarding the characterization of assets or the enforceability of premarital agreements. Akiyode serves as a stark reminder that filing a notice of appeal before the entire case is resolved—expecting the appellate court to hold the case in abeyance while you finish the trial on remaining issues like property division or attorney’s fees—is a procedural dead end. Rule 27.2 will not save an appeal where the trial court still has substantive work to do, such as presiding over a jury trial on a counterclaim.
Case Summary
Fact Summary
The Appellant, Adebolujo Bolu Akiyode, attempted to appeal an interlocutory order that modified a prior summary judgment. The order in question was explicit regarding its lack of finality, stating that a counterclaim remained "open and active" and expressly labeling itself as "interlocutory." Despite this, an appeal was initiated. Upon receiving a notice of intent to dismiss for lack of jurisdiction from the Court of Appeals, the Appellant moved to abate the appeal under TRAP 27.2. The Appellant argued that the court should pause the appeal to allow the trial court to clarify whether a final judgment existed or to enter an order rendering the judgment final. However, the clerk's record revealed that the remaining claims were not merely awaiting a signature, but were actually set for a jury trial on March 31, 2026.
Issues Decided
The central issue was whether an appellate court may exercise its discretion under Texas Rule of Appellate Procedure 27.2 to abate an appeal when the underlying judgment is interlocutory because substantive claims remain pending for an upcoming jury trial.
Rules Applied
- Texas Rule of Appellate Procedure 27.2: Provides that an appellate court may allow an appealed order that is not final to be modified so as to be made final, allowing the modified order to be included in a supplemental record.
- Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001): The seminal Texas Supreme Court case establishing that an order is final for purposes of appeal only if it disposes of all pending parties and claims in the record, except as provided by statute.
- Texas Rule of Appellate Procedure 42.3(a): Permits involuntary dismissal of an appeal for want of jurisdiction.
- Ministerial vs. Substantive Acts: The court distinguished between "ministerial acts" (like signing an order following a non-suit) and substantive adjudicative acts (like conducting a jury trial).
Application
The Court of Appeals engaged in a strict textual and precedential analysis of Rule 27.2. It noted that while the rule allows for the "modification" of an order to make it final, this mechanism is reserved for correcting technical defects or clarifying the trial court’s intent when the court has effectively finished its work. The Court contrasted the facts in Akiyode with cases where abatement was proper, such as when a trial court simply needs to perform a ministerial act like signing an order of non-suit that has already been filed. In this case, the record showed a jury trial was set for the remaining counterclaims. The Court reasoned that waiting for the outcome of a jury verdict is fundamentally different from the "clarification" contemplated by the Texas Supreme Court in Lehmann. Because the order was clearly interlocutory and the trial court still had to adjudicate the merits of the counterclaims through a trial, the Court found that Rule 27.2 could not be used to bypass the finality requirement.
Holding
The Court denied the motion to abate and dismissed the appeal for want of jurisdiction. The Court held that Rule 27.2 is intended to be used to correct or clarify orders of the trial court, not to allow the trial court to finish disposing of unresolved claims through a trial. The Court further held that when an order specifies that claims remain open and active and a jury trial is pending, the circumstances do not fall within the scope of Rule 27.2 or the ministerial exceptions established by Texas precedent.
Practical Application
For the family law practitioner, this case highlights the danger of the "protective" notice of appeal. If you are litigating a case where the court has granted a partial summary judgment on a dispositive issue (e.g., the validity of a post-nuptial agreement) but has not yet tried the remaining property or custody issues, do not file your notice of appeal. If you do file prematurely, do not expect an abatement to save your position. Appellate courts are increasingly unwilling to keep "half-baked" appeals on their dockets while trial courts conduct substantive proceedings. If your judgment does not dispose of every claim—including attorney's fees, expert costs, and secondary counterclaims—it is interlocutory, and the 14th Court has signaled it will dismiss rather than wait.
Checklists
Pre-Appeal Finality Audit
- Check the "Mother Hubbard" Clause: Does the order state "all relief not granted is denied"? (Note: Per Lehmann, this is not always sufficient if the record contradicts it).
- Identify Remaining Claims: Are there any outstanding counterclaims for attorney's fees, sanctions, or enforcement?
- Confirm Severance: If you need to appeal a partial ruling immediately, have you obtained a proper severance order that creates a final, appealable judgment for that specific claim?
- Label Check: Does the order describe itself as "interlocutory" or "partial"? If so, it is a red flag that the appellate court will likely dismiss.
Evaluating Abatement under Rule 27.2
- Nature of the Fix: Is the lack of finality due to a missing signature on a non-suit or a simple clerical error? (Abatement likely).
- Pending Adjudication: Is the trial court required to hear evidence, make findings, or preside over a jury to resolve the remaining issues? (Abatement unlikely).
- Clarity of Intent: Does the order clearly state it is interlocutory? (If the order's intent is clear, there is nothing for the trial court to "clarify" under Rule 27.2).
Citation
Akiyode v. McGee, No. 14-25-00787-CV, 2026 WL (Tex. App.—Houston [14th Dist.] Feb. 26, 2026, no pet. h.) (mem. op.).
Full Opinion
The full opinion can be found here: Full Opinion Link
Family Law Crossover
This ruling can be effectively weaponized in divorce or custody litigation to exhaust an opponent's resources or derail their appellate strategy. If an opposing party prematurely appeals a favorable partial ruling you obtained—perhaps a partial summary judgment characterizing a business as separate property—you should immediately move for dismissal for want of jurisdiction rather than agreeing to an abatement. By forcing a dismissal, you compel the opponent to wait until the entire case is over to appeal, often months or years later, while simultaneously forcing them to incur the costs of re-filing and re-briefing the appeal at a later date. This case provides the precedent to argue that the appellate court should not "park" the case while the rest of the divorce or SAPCR proceeds to trial. ~~fe24bc01-5af7-4be9-86ff-d915d2a4e322~~
