Fred Forster, III v. Jelco Energy, Inc. and Cathedral Gas Corporation

Opinion filed November 3, 2005

Opinion filed November 3, 2005

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00113-CV

                                                    __________

                                     FRED FORSTER, III, Appellant

                                                             V.

         JELCO ENERGY, INC. AND CATHEDRAL GAS CORPORATION,

                                                                     Appellees

                                         On Appeal from the 238th District Court

                                                        Midland County, Texas

                                                Trial Court Cause No. CV-44,631

                                              M E M O R A N D U M   O P I N I O N

This is an appeal from a judgment granting a petition for bill of review, vacating a prior judgment, and ordering a new trial.  We dismiss for want of jurisdiction.

In 2002, Fred Forster, III sued Jelco Energy, Inc. and Cathedral Gas Corporation.  On August 20, 2003, the trial court signed a default judgment against Jelco and Cathedral.  On May 27, 2004, Jelco and Cathedral filed a petition for bill of review challenging the August 20, 2003, judgment.  Jelco and Cathedral asked that the trial court vacate the August 20, 2003, judgment and order a new trial.

On January 24, 2005, the trial court signed the judgment granting the bill of review.  In this judgment, the trial court vacated the prior August 20, 2003, judgment and ordered a new trial.  Forster perfected this appeal.

Jelco and Cathedral have filed in this court a motion to dismiss the appeal.  Relying on Jordan v. Jordan, 907 S.W.2d 471 (Tex.1995), Jelco and Cathedral contend that the January 24, 2005, judgment is interlocutory and not appealable.  We agree.

The January 24, 2005, judgment set aside the prior judgment but did not dispose of the merits of the case; therefore, the January 24, 2005, judgment is not a final, appealable judgment.  Jordan v. Jordan, supra; In re Parker, 117 S.W.3d 484, 488 (Tex.App. - Texarkana 2003, orig. proceeding); Hartford Underwriters Insurance v. Mills, 110 S.W.3d 588, 591 (Tex.App. - Fort Worth 2003, no pet=n); Mills v. Corvettes of Houston, Inc., 44 S.W.3d 197, 199 (Tex.App. - Houston [14th Dist.] 2001, no pet=n); Edison v. Beta Financial Corporation, 994 S.W.2d 827, 828 n.1 (Tex.App. - Eastland 1999, pet=n den=d). The motion is granted.

The appeal is dismissed for want of jurisdiction.

PER CURIAM

November 3, 2005

Not designated for publication. See TEX.R.APP.P. 47.2(a).

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.