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.
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