Luster, Michael W. v. Union Pacific Railroad Co. ( 2003 )

Memorandum Opinion issued January 30, 2003

In The

Court of Appeals  

For The

First District of Texas

_______________

NO. 01-02-00104-CV

_______________

MICHAEL LUSTER, Appellant

V.

UNION PACIFIC RAILROAD COMPANY AND MISSOURI PACIFIC RAILROAD COMPANY D/B/A UNION PACIFIC RAILROAD COMPANY, Appellees

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Cause No. 99-58244

MEMORANDUM OPINION

          Appellant has filed an unopposed motion to dismiss his pending appeal in this Court. Appellant contends that his appeal is now moot and should therefore be dismissed. We agree.

          This is an appeal from an amended final judgment signed on November 5, 2001, following a jury trial. Based on the jury verdict, the trial court initially signed a take-nothing judgment on January 26, 2001. Following a timely filed motion for new trial, the trial court granted a new trial on April 11, 2001. However, in the amended final judgment, the trial court revoked its order of April 11, 2001, and again entered a take-nothing judgment.

          Appellant filed a notice of appeal on November 26, 2001, from the amended final judgment of November 5, 2001, which was assigned to this Court. Appellant also filed a petition for writ of mandamus in the Fourteenth Court of Appeals, attacking the November 5, 2001, amended final judgment as void under the reasoning in Porter v. Vick, 888 S.W.2d 789 (Tex. 1994).

          On March 11, 2002, the Fourteenth Court issued an opinion in In re Michael W. Luster, cause no. 14-02-00064-CV, which held the November 5, 2001, amended final judgment was void. The opinion stated that the writ of mandamus would issue only if the trial court failed to vacate its judgment of November 5, 2001. Appellee then filed a petition for writ of mandamus in the Texas Supreme Court directed to the Fourteenth Court of Appeals. On October 31, 2002, the supreme court issued a ruling in cause no. 02-0310, denying appellee’s petition for writ of mandamus. Appellee did not seek rehearing consideration of the supreme court’s order, which is now final.

          To accompany the Fourteenth Court’s issuance of a conditional writ of mandamus, appellant has filed a pleading in the trial court requesting that the void judgment be set aside, and that the new-trial order entered on April 11, 2001, be reinstated. Accordingly, appellant requests that this Court (1) find the pending appeal moot and (2) dismiss this matter.

          We agree with appellant that the amended final judgment of November 5, 2001, is neither final nor appealable and therefore this Court has no jurisdiction to entertain this appeal. The general rule, with a few mostly statutory exceptions, is that an appeal may be taken only from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record, except as necessary to carry out the decree. Id. Accordingly, we grant appellant’s unopposed motion to dismiss and hereby dismiss this appeal as moot. All other pending motions are denied as moot.

PER CURIAM

Panel consists of Justices Taft, Keyes, and Higley.