Carol Ann Gibbons and Virginia Floyd v. Luby's Inc., Luby's Restaurants Limited Partnership, and Luby's Management, Inc.

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-10-00348-CV

CAROL ANN GIBBONS AND APPELLANTS VIRGINIA FLOYD

V.

LUBY’S INC., LUBY’S APPELLEES RESTAURANTS LIMITED PARTNERSHIP, AND LUBY’S MANAGEMENT, INC.

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FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION1 ----------

Appellants Carol Ann Gibbons and Virginia Floyd filed a notice of

accelerated appeal, attempting to appeal the trial court’s September 16, 2010

―Order on Defendants’ Motion to Set Aside Default Judgment and Grant New

Trial.‖ On October 6, 2010, this court sent the parties a letter informing them of

1 See Tex. R. App. P. 47.4. our concern that we may not have jurisdiction over this appeal because the order

did not appear to be an appealable interlocutory order. We stated that unless

appellants or any party desiring to continue the appeal filed with the court by

October 18, 2010, a response showing grounds for continuing the appeal, this

appeal may be dismissed for want of jurisdiction. See Tex. R. App. P. 42.3(a).

Both parties responded to our letter. Appellees’ response states that this

court should dismiss the appeal for want of jurisdiction because the trial court’s

original order was an interlocutory default judgment, no severance of any issue

or party has occurred, and there is no statutory basis for this interlocutory appeal.

See Tex. Civ. Prac. & Rem. Code. Ann. § 51.014 (Vernon 2008) (listing

permissible interlocutory appeals); see also Lehman v. Har-Con Corp., 39

S.W.3d 191, 192–93 (Tex. 2001). Appellants’ response states that unless this

court believes that it has jurisdiction, they will pursue a remedy by way of a

petition for writ of mandamus.2

2 Appellants subsequently filed a petition for writ of mandamus, which we denied. See In re Gibbons, No. 02-10-00400-CV, 2010 WL 4569998 (Tex. App.—Fort Worth Nov. 4, 2010, orig. proceeding [mand. denied]).

2 We can discern no statutory basis for this interlocutory appeal. Therefore,

we dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a),

43.2(f).

PER CURIAM

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DELIVERED: January 27, 2011