ATCO-Valley Plaza, L.L.C. v. the Gates Corporation, Oklatex Corp., Brown, Butera & MacDougall, Inc., Oklatex Protectors, Inc., Priscilla G. Nelson (a/K/A Gail P. Nelson and Priscilla Gail Sanders), and Sandra J. Boatman (a/K/A Sandra Sapp Boatman)

• Court: Court of Appeals of Texas
• Decided: July 11, 2008
• Docket: 01-08-00073-CV
• Status: Published

Opinion

Memorandum Opinion on Motion for Rehearing issued July 11, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00073-CV

ATCO - VALLEY PLAZA, L.L.C.; DERREST S. WILLIAMS; TEXAS GENERAL STORAGE SYSTEMS, INC.; AND TEXAS GULF DEVELOPMENT, L.P., Appellants

V.

THE GATES CORPORATION, OKLATEX CORP.; BROWN, BUTERA & MACDOUGALL, INC.; OKLATEX PROTECTORS, INC.; PRISCILLA G. NELSON (A/K/A GAIL P. NELSON AND PRISCILLA GAIL SANDERS); AND SANDRA J. BOATMAN (A/K/A SANDRA SAPP BOATMAN), Appellees

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Cause No. 2004-67995

MEMORANDUM OPINION ON MOTION FOR REHEARING Appellant ATCO-Valley Plaza, L.L.C. has filed a motion for rehearing, asserting that this Court did not have jurisdiction of this case when on May 22, 2008 we dismissed the appeal because appellants had neither established indigence, nor paid or made arrangements to pay the clerk's fee for preparing the clerk's record. See Tex. R. App. P. 20.1 (listing requirements for establishing indigence), 37.3(b) (allowing dismissal of appeal if no clerk's record filed due to appellant's fault). Appellant asserts this Court's lack of jurisdiction based on its assertion that on January 30, 2008, within 30 days of the trial court's signature of its judgment of dismissal, the trial court signed an order reinstating the case on the trial court's docket, resulting in a lack of a final appealable trial court judgment. Appellant supported its assertion with an attached certified copy of the trial court's order of reinstatement, requested withdrawal of this Court's May 22, 2008 opinion and judgment, and requested a new order dismissing the appeal for want of jurisdiction.

We requested the parties to respond to appellant's motion for rehearing by June 27, 2008, but we have received no response. We grant appellant's motion for rehearing, withdraw our May 22, 2008 opinion, vacate our May 22, 2008 judgment, and dismiss this appeal for want of jurisdiction due to an absence of a final appealable judgment. Lehmann v. Har-Con Corp. 39 S.W.3d 191, 195 (Tex. 2001); St. Raphael Medical Clinic, Inc. v. Mint Medical Physician Staffing, LP, 244 S.W.3d 436, 439 (Tex. App. [Houston 1st Dist. 2008, no pet.) (The general rule, with a few mostly statutory exceptions, is that an appeal may be taken only from a final judgment). None of the statutory exceptions apply here.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Keyes and Higley.