Morrell Masonry Supply, Inc. v. Carnegie Homes & Construction, LLC

Motions Denied, Appeal Dismissed, and Memorandum Opinion filed January 10, 2019.

In The

Fourteenth Court of Appeals

NO. 14-18-00977-CV

MORRELL MASONRY SUPPLY, INC., Appellant V.

CARNEGIE HOMES & CONSTRUCTION, LLC, Appellee

On Appeal from the 190th District Court Harris County, Texas Trial Court Cause No. 2015-61394

MEMORANDUM OPINION This is an appeal from a judgment signed July 23, 2018. The trial judge signed an order on November 5, 2018 granting in part plaintiff/appellant Morrell Masonry Supply, Inc.’s motion for new trial.

The new-trial order vacated the July 23, 2018 judgment on appeal. In re E.C., 431 S.W.3d 812, 815–16 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding [mand. denied]) (“Granting a new trial has the legal effect of vacating the original

judgment and returning the case to the trial docket as though there had been no previous trial or hearing.”). Therefore, there is no appealable judgment and we lack jurisdiction to consider this appeal. See Tex. R. App. P. 25.1(b); Stelly v. Citibank (South Dakota) N.A., No. 14-07-00601-CV, 2008 WL 2066571, *1 (Tex. App.— Houston [14th Dist.] May 15, 2008, no pet.).

On December 17, 2018, we notified the parties that we would dismiss the appeal for lack of jurisdiction unless appellant filed a response demonstrating grounds for continuing the appeal. See Tex. R. App. P. 42.3(a). In response, appellant filed a motion to abate the appeal until the underlying case is retried. (Appellant made a similar request in a motion to stay filed on November 14, 2018.) Abatement is not appropriate under these circumstances.

Appellant’s motion to stay and motion to abate are denied, and the appeal is dismissed.

PER CURIAM

Panel consists of Justices Christopher, Wise, and Hassan.