Annette S. Muecke v. Alfonso Cavazos, et al.--Appeal from County Court at Law No 3 of Bexar County

No. 04-02-00007-CV
Annette S. MUECKE,
Appellant
v.
Alfonso CAVAZOS, Peter Torres, Jr.,

and The Law Office of Peter Torres, Jr., P.C.,

Appellees
From the County Court at Law No. 3, Bexar County, Texas
Trial Court No. 233,987
Honorable Shay Gebhardt, Judge Presiding

PER CURIAM

Sitting: Paul W. Green, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: May 8, 2002

DISMISSED FOR WANT OF JURISDICTION

Annette Muecke appeals the trial court's orders granting new trials to appellees, Alfonso Cavazos, Peter Torres, Jr., and The Law Office of Peter Torres, Jr., P.C. (1) We ordered Muecke to show cause why the appeal should not be dismissed for want of jurisdiction as an improper appeal of interlocutory orders. Muecke timely responded but the response is unpersuasive.

A default judgment was entered against Cavazos and Torres on October 22, 2001. Cavazos filed a timely motion for new trial which was granted on January 3, 2002. Torres filed an untimely motion for new trial which Muecke states was granted on December 6, 2001. (2)

When the trial court grants a motion for new trial, the cause is reinstated on the court's docket as if no trial had occurred and no judgment rendered. City of San Antonio v. Dickman, 34 Tex. 647, 650 (1871). The granting of a motion for new trial is not a final appealable order. Fruehaf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993); Cummins v. Paisan Constr. Co., 682 S.W.2d 235, 236 (Tex. 1984). In the absence of a final judgment, we lack jurisdiction over the appeal. See City of Beaumont v. Guillory, 751 S.W.2d 491, 492 (Tex. 1988). (3)

Muecke also seeks to appeal all other orders of the trial court entered since the granting of the motions for new trial. Like the orders granting new trial, the subsequent orders are interlocutory and not final for purposes of appeal. We lack jurisdiction to consider these interlocutory orders. See TransAmerica Natural Gas Co. v. Powell, 811 S.W.2d 913, 919 (Tex. 1991) (interlocutory order that does not result in appealable judgment must be challenged in appeal following final judgment).

Accordingly, the appeal is dismissed for want of jurisdiction. See Tex. R. App. P. 42.3(a).

PER CURIAM

Do Not Publish

1. Appellees' pleadings indicate the correct name for the corporation is Peter Torres, Jr., A Professional Corporation. Hereafter, Torres and the corporation are referred to collectively as "Torres."

2. The record contains no order granting Torres a new trial nor any order granting a Rule 306a motion for additional time which would be necessary for the motion for new trial to be effective. See Tex. R. App. P. 4.2(c); Tex. R. Civ. P. 306a(4)-(5). However, for purposes of our jurisdiction review, we will assume Muecke is correct and a new trial was granted.

3. Muecke's contention that the orders are void for lack of trial court jurisdiction may be presented by petition for writ of mandamus which Muecke has already filed. See Dunn v. Street, 938 S.W.2d 33, 35 (Tex. 1997).