MacWhyte Co. v. Gonzalez , 1985 Tex. App. LEXIS 6311 ( 1985 )

OPINION

SCHULTE, Justice.

This is an original proceeding for writ' of mandamus. Relator prays that the Honorable Alex Gonzalez, District Judge, be commanded to vacate his order overruling Relator’s motions to transfer venue and command him to transfer the case of Morales v. MacWhyte Co., et al. to a district court in Dallas County, Texas. See 688 S.W.2d 202. We shall refer to Relator as MacWhyte. We deny the writ.

Calixto Morales suffered personal injuries on December 30, 1976, while on his job site in Pecos County, Texas, when a wire rope on a crane broke. His suit was filed in Pecos County on December 28, 1978, alleging MacWhyte manufactured the rope. On April 20, 1982, the trial court overruled Relator’s plea of privilege to move the case to Dallas County. On December 1, 1982, this Court reversed the trial court’s venue decision and remanded the case to the trial court. While the matter was back in the trial court, the new venue statute (Article 1995, Tex.Rev.Civ.Stat. [Vernon Supp. 1985]) and new venue rule (Rule 86, Tex.R. Civ.P.) went into effect September 1, 1983. On April 25, 1984, Relator filed a new plea of privilege or in the alternative, a motion to transfer venue. On August 15, 1984, the Respondent judge denied the transfer based on the amended venue statute and rule, and we believe correctly.

Relator argues that since this Court had remanded the venue matter, the old venue law should now be applied by the trial court and by this Court in hearing the second appeal. Relator argues that the law of the case should be applied. A litigant does not have a vested right in procedural rules, and new rules may be put into effect taking away prior remedies provided the litigant is not left without any remedy. Church v. Crites, 370 S.W.2d 419 (Tex.Civ. App. — San Antonio 1963, writ ref’d n.r.e.). The law of the ease applies only to matters dealt with in the prior appeal. Denny v. White House Lumber Company, 150 S.W.2d 296 (Tex.Civ.App. — Amarillo 1941, writ dism’d). This Court did not determine in the prior appeal of the venue matter whether the venue law before or after September 1, 1983, should apply to the matter on remand. As to the argument that this Court has continuing jurisdiction, this Court retains only enough power over a case to ensure that its decisions are executed. Wells v. Littlefield, 62 Tex. 28 (1884); Hughes v. Sanders, 243 S.W.2d 211 (Tex.Civ.App. — San Antonio 1951, no writ). Relator had received all remedies heretofore ordered by this Court. This Court does not retain jurisdiction to hear a case again after it has been remanded to a trial court unless a second appeal is duly perfected. In this instance, under the amended statute and rule, the appeal does not now lie. That is not to suggest that Relator is left without a remedy. Its appeal has merely been deferred until the matter reaches an appellate court on its merits.

This Court does not have jurisdiction of the interlocutory venue appeal as reflected by its opinion issued this same date, 688 S.W.2d 202. Wells v. Metro Fina Co., 677 S.W.2d 251 (Tex.App. — El Paso 1984, no writ); Grubbs v. Mercantile Texas Corp., 668 S.W.2d 429 (Tex.App. — Eastland 1984, no writ); Ramcon Corporation v. American Steel Building Company, Inc., 668 S.W.2d 459 (Tex.App. — El Paso 1984, no writ); Boyd v. Raymondville State Bank, 668 S.W.2d 466 (Tex.App. — Corpus Christi 1984, no writ); Graue-Haws, Inc. v. The Honorable Lawrence Fuller, 666 S.W.2d 238 (Tex.App. — El Paso 1984, no writ); Morrison by Morrison v. Williams, 665 S.W.2d 212 (Tex.App. — San Antonio 1984, no writ); Byrd v. Pharris, 663 S.W.2d 856 (Tex.App. — San Antonio 1983, no writ). Contra: Gonzalez v. H.E. Butt Grocery Co., 667 S.W.2d 188 (Tex.App.— Corpus Christi 1983, no writ). Nor do we find that the Relator is entitled to the writ. An adequate remedy at law is available to the Relator on the final appeal of the case on the merits, should that be necessary. We find no abuse of discretion on the part of a trial court in applying the law in effect at the time of the filing of the motions in question and the hearing thereon. Article 1995, Tex.Rev.Civ.Stat.Ann. (Vernon Supp. 1985); Rule 86, Tex.R.Civ.P.

The writ of mandamus is denied.