Andy's Marine, Inc. v. Morse Controls Limited (u.K.) and Morse Controls Division of Imo Industries, Inc. ( 2004 )

  NUMBER 13-03-562-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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ANDY’S MARINE, INC.,                                                    Appellant,

v.

MORSE CONTROLS LIMITED (U.K.) AND MORSE

CONTROLS DIVISION OF IMO INDUSTRIES, INC.,                Appellees.

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On appeal from the 370th District Court

of Hidalgo County, Texas.

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MEMORANDUM OPINION ON MOTION FOR REHEARING  

Before Justices Yañez, Rodriguez, and Castillo

             Per Curiam Memorandum Opinion on Motion for Rehearing

         Appellees, Morse Controls Limited (U.K.) and Morse Controls Division of IMO Industries, Inc. (“Morse”), filed a motion for rehearing raising seventeen separate issues on June 3, 2004. We deny the motion for rehearing, but withdraw our previous opinion and substitute this opinion in its place to address some of the motion’s questions regarding the legal and factual basis for our opinion.

         On August 6, 2003, Andy’s Marine, Inc. (“Andy’s Marine”) filed its notice of appeal from a trial court judgment following a jury verdict in a personal injury lawsuit. On March 31, 2004, Andy’s Marine filed a “Notice of Voluntary Dismissal of Appeal.” According to this notice, the dismissal of the appeal would not prevent any other party from seeking any relief to which it would otherwise be entitled; however, it would be a “partial” disposition under appellate rule 42.1(b) because “there are issues remaining between other parties to this appeal.” See Tex. R. App. P. 42.1(b). According to the notice and subsequent briefing provided by Morse, Morse opposes dismissal of the appeal.

         As an initial matter, the record shows that Andy’s Marine is the only party that filed a notice of appeal. Morse did not perfect appeal. A party who seeks to alter the trial court’s judgment or other appealable order must file a notice of appeal. See Tex. R. App. P. 25.1(c). Therefore, we note that, to the extent that Morse may be seeking to alter the trial court’s judgment, it was required to file a notice of appeal.

         The filing of a notice of appeal by any party invokes the appellate court’s jurisdiction over all parties to the trial court’s judgment or order appealed from. See Tex. R. App. P. 25.1. Therefore, in accordance with a motion filed by an appellant, the appellate court may dismiss an appeal “unless disposition would prevent a party from seeking relief to which it would otherwise be entitled.” See Tex. R. App. P. 42.1(a)(1).          Morse opposes dismissal of this appeal because it contends that this Court has a duty to determine the validity of a September 4, 2003, order granting a new trial in favor of the Salazars, plaintiffs below. According to Morse, this issue is necessary to final disposition of this appeal. Morse contends that the new trial order is void or invalid because, inter alia: (1) the motions for new trial were not signed by the parties or their “lawful attorney in charge;” (2) the deadlines for the calculation of plenary power should run from the final judgment entered on April 8, 2003 instead of a corrected final judgment entered on May 7, 2003; (3) post-verdict counsel failed to pay required fees for the motions for new trial; and (4) the district court failed to state on the record its rationale for granting a new trial. Morse’s request that we determine the validity of the order granting a new trial would require us to exceed the established bounds of our appellate jurisdiction.

         An order granting a new trial is an interlocutory order that is not subject to review on direct appeal from that order or from a final judgment rendered after further proceedings in that court. Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993) (per curiam); Cummins v. Paisan Constr. Co., 682 S.W.2d 235, 235-36 (Tex. 1984) (per curiam); Bay, Inc. v. Ramos, 139 S.W.3d 322, 331 (Tex. App.–San Antonio 2004, pet. filed); Volkswagen of Am., Inc. v. Ramirez, 79 S.W.3d 113, 128 (Tex. App.–Corpus Christi 2002, pet. granted); Otis Spunkmeyer, Inc. v. Blakely, 30 S.W.3d 678, 683 (Tex. App.–Dallas 2000, no pet.); Vandehaar v. ALC Fin. Corp., 25 S.W.3d 406, 410 (Tex. App.–Beaumont 2000, pet. denied); Dillard v. Leonard, 801 S.W.2d 23, 25 (Tex. App.–San Antonio 1990, no writ); see also In re Bayerische Motoren Werke, AG, 8 S.W.3d 326, 328 (Tex. 2000) (Hecht, J. dissenting). Instead, under limited circumstances, orders granting motions for new trial may be subject to review by mandamus. See, e.g., In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (mandamus granted to set aside void order setting aside new trial after loss of plenary power); Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985) (mandamus granted where order granting new trial incorrectly states jury’s answers are in fatal conflict). Accordingly, Morse is not entitled to the relief it seeks in this appeal. See Tex. R. App. P. 42.1(a)(1).

         Nevertheless, Morse vociferously encourages us to consider this issue in this appeal in the interests of judicial economy and efficiency. However, the subject matter that Morse wishes addressed is not in the nature of an appealable interlocutory order. Our ruling would amount to no more than an advisory opinion. We are prohibited from issuing an advisory opinion, the distinctive feature of which is that it decides an abstract question of law without binding the parties. Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (per curiam); Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993); see Tex. Const. art. II, § 1.

         We take no position in this appeal on the validity or invalidity of the order granting new trial. Contrary to Morse’s arguments, we do not have a duty to do so, and we are instead affirmatively prohibited from reaching this issue.

         We need not address the remainder of Morse’s issues on rehearing. Morse did not appeal the judgment or other appealable order, and the issues Morse raises are not necessary to final disposition of this appeal. See Tex. R. App. P. 25.1(c); Tex. R. App. P. 47.1. Thus, in accordance with the motion to dismiss filed by Andy’s Marine, we dismiss this appeal. See Tex. R. App. P. 42.1(a)(1).

                                                                                 PER CURIAM

Memorandum Opinion on Motion for Rehearing

delivered and filed this 4th day of November, 2004.