Alice J. Johnson v. Ameriquest Mortgage Company

Dismissed and Memorandum Opinion filed May 13, 2004 Dismissed and Memorandum Opinion filed May 13, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-04-00121-CV ____________ ALICE J. JOHNSON, Appellant V. AMERIQUEST MORTGAGE COMPANY, Appellee On Appeal from the 61st District Court Harris County, Texas Trial Court Cause No. 00-00760 M E M O R A N D U M   O P I N I O N This is an attempted appeal from an Order Setting Aside Order to Disburse Excess Proceeds signed December 19, 2003. On January 8, 2004, appellant filed a notice of appeal stating she intended Ato file a Petition for Writ of Mandamus to appeal@ the trial court=s order. The clerk=s record was filed on February 20, 2004. The record reflects there is no final, appealable order from which appellant may appeal. Accordingly, we dismiss the appeal for want of jurisdiction. Appellant filed a claim for excess proceeds from the sale of real property sold pursuant to the foreclosure of a tax lien. See Tex. Tax Code Ann. ' 34.04 (Vernon Supp. 2004). On April 24, 2003, appellee, Ameriquest Mortgage Company, a former lienholder against the foreclosed property, intervened to claim excess proceeds. Appellant asserts she did not receive notice of the intervention until May 27, 2003, and therefore, she did not give notice to Ameriquest of the hearing on appellant=s motion held before the Tax Master on May 15, 2003. Ameriquest was not present at the hearing. On the recommendation of the Tax Master, the trial court signed an Order to Disburse Excess Proceeds from the Registry of the Court to appellant and Harris County and San Jacinto Community College District, all of which also had claimed a portion of the proceeds. On September 16, 2003, Ameriquest filed a motion to set aside the order to disburse excess proceeds, asserting the May 21, 2003 order was interlocutory because it had intervened to claim excess proceeds and its claim had not been disposed of in the order. On October 20, 2003, appellant filed a plea to the jurisdiction, asserting the May 21 order was final and the trial court no longer had plenary jurisdiction to set aside its order. Appellant asserted Ameriquest failed to file a proper, verified motion claiming late notice of the judgment, as required under Rule 306a. See Tex. R. Civ. P. 306a. The Tax Master recommended Ameriquest=s motion be denied, and Ameriquest appealed to the district court. After a hearing on December 19, 2003, the trial court signed an order setting aside its May 21, 2003 order to disburse excess proceeds and ordered appellant to return the funds to the registry of the court. Appellant then filed this appeal. On April 14, 2004, notification was transmitted to all parties of the Court=s intent to dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a). The Court=s notice also stated that no petition for writ of mandamus had been filed, as stated in appellant=s notice of appeal. Appellant=s only response to the court=s notice was to file a petition for writ of mandamus.[1] Her petition fails to address which remedy, appeal or mandamus, is appropriate. Accordingly, appellant=s response fails to demonstrate that this Court has jurisdiction to entertain the appeal. To be final, a judgment must dispose of all claims and parties. See Lehmann v. Har-Con Corp., 39 S.W.2d 191, 200 (Tex. 2001). The trial court=s May 21, 2003 order failed to dispose of Ameriquest=s claim; therefore, it was not final. See Nelson v. Lubbock Central Appraisal Dist., No. 07-02-0349-CV, 2003 WL 1987959 (Tex. App.CAmarillo April 30, 2003, no pet.) (mem. op.) (holding order to distribute part of excess proceeds from tax lien foreclosure is interlocutory order not immediately appealable). The trial court retained plenary jurisdiction to later set aside the order. See Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993) (holding trial court retains power to set aside interlocutory order any time before final judgment is entered). An order setting aside a previous order, like an order granting a new trial, is not appealable. See In re Jackson Person & Associates, Inc., 94 S.W.3d 815, 818 (Tex. App.CSan Antonio 2002, orig. proceeding). We hold that the trial court=s order signed December 19, 2003, is an interlocutory order not subject to appeal. See Qwest Communications Corp. v. AT & T Corp., 24 S.W.3d 334, 336 (Tex. 2000) (holding appellate court has jurisdiction to hear appeals from interlocutory orders only when specifically authorized by statute). Accordingly, the appeal is ordered dismissed. PER CURIAM Judgment rendered and Memorandum Opinion filed May 13 , 2004. Panel consists of Chief Justice Hedges and Justices Frost and Guzman. [1] By separate opinion issued this date, we denied the petition for writ of mandamus. See In re Johnson, No. 14-04-00369-CV (Tex. App.CHouston [14th Dist.] May 13 , 2004, orig. proceeding) (mem. op.).