Alice Spratling v. Cach, LLC

DISMISS and Opinion Filed December 30, 2013.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-01392-CV

ALICE SPRATLING, Appellant V. CACH, LLC, Appellee

On Appeal from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-12-14767

MEMORANDUM OPINION Before Justices Moseley, Bridges, and Evans Opinion by Justice Evans In a letter dated November 4, 2013, the Court questioned its jurisdiction over this appeal.

Specifically, it appeared there was no final judgment because the trial court had granted appellant’s motion for new trial. We instructed appellant to file a letter brief addressing our concern and gave appellee an opportunity to respond. Appellant filed a letter brief but failed to address the jurisdictional issue. Appellee did not file a response.

Generally, appeals may be taken only from final judgments. See Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When a motion for new trial is granted, the case is reinstated on the trial court’s docket and will stand for trial the same as though the previous judgment never existed. See Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex.2005). An order granting a new trial deprives an appellate court of jurisdiction over the appeal. See Yan v. Jiang, 241 S.W.3d 930 (Tex. App.—Dallas 2008, no pet.).

The trial court signed a final default judgment on July 23, 2013. Appellant filed both a timely motion for new trial and a notice of appeal on August 5, 2013. The trial court signed an order granting appellant’s motion for new trial on August 16, 2013. Because the trial court granted appellant’s motion for new trial, there is no final judgment. See Wilkins, 160 S.W.3d at 563; Yan, 241, S.W.3d at 930. Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).

/David Evans/ DAVID EVANS JUSTICE

131392F.P05

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S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ALICE SPRATLING, Appellant On Appeal from the 298th Judicial District Court, Dallas County, Texas. No. 05-13-01392-CV V. Trial Court Cause No. DC-12-14767. Opinion delivered by Justice Evans. CACH, LLC, Appellee Justices Moseley and Bridges, participating.

In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

It is ORDERED that appellee, CACH, LLC, recover its costs of this appeal from appellant, ALICE SPRATLING.

Judgment entered this 30th day of December, 2013.

/David Evans/ DAVID EVANS JUSTICE

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