Duke-Keller Outdoor Advertising, Inc. and Texas NaCK Enterprises, L.L.C. D/B/A Keller Outdoor Advertising v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 4, 2022
• Docket: 07-22-00038-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-22-00038-CV ________________________

DUKE-KELLER OUTDOOR ADVERTISING, INC. AND TEXAS NACK ENTERPRISES, L.L.C. D/B/A KELLER OUTDOOR ADVERTISING, APPELLANTS

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the County Court at Law Number 3 Lubbock County, Texas Trial Court No. 2019-822,472; Honorable Benjamin A. Webb, Presiding

March 4, 2022

MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Appellants Duke-Keller Outdoor Advertising, Inc. and Texas NaCK Enterprises,

L.L.C. d/b/a Keller Outdoor Advertising appeal from the trial court’s Judgment of Court in

Absence of Objection. Because the trial court has granted a new trial, we dismiss the

appeal for want of jurisdiction. Appellee, the State of Texas, filed a petition for condemnation against the owners

of certain real property in Lubbock County for highway purposes. On November 8, 2021,

the trial court signed the Judgment of Court in Absence of Objection, condemning the

property and adopting the damages award assessed by the appointed special

commissioners. See TEX. PROP. CODE ANN. §§ 21.014, 21.061. Appellants timely filed a

motion for new trial on December 7, 2021. See TEX. R. CIV. P. 329b(a). The motion was

denied by operation of law on January 24, 2022. See id. at 4, 329b(c). However, the trial

court signed an order granting a new trial on February 4, 2022, before the expiration of

its plenary power. See id. at 329(e). That day, Appellants filed a notice of appeal from

the judgment. See TEX. PROP. CODE ANN. § 21.063.

We have jurisdiction to hear an appeal from a final judgment or from an

interlocutory order made immediately appealable by statute. See Lehmann v. Har-Con

Corp., 39 S.W.3d 191, 195 (Tex. 2001); Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex.

1998) (per curiam). When a trial court grants a new trial, the existing judgment is vacated

and the case is returned to the trial court’s docket as though there had been no previous

trial or hearing. Markowitz v. Markowitz, 118 S.W.3d 82, 88 (Tex. App.—Houston [14th

Dist.] 2003, pet. denied).

By letter of February 8, 2022, we notified Appellants that it does not appear we

have jurisdiction over the appeal because the trial court granted a new trial, vacating the

final judgment. See In re K.F., No. 07-08-00102-CV, 2008 Tex. App. LEXIS 2068, at *2

(Tex. App.—Amarillo Mar. 19, 2008, no pet.) (mem. op.) (“An order granting new trial

deprives an appellate court of jurisdiction over the appeal.”). We directed Appellants to

2 show how we have jurisdiction over the appeal by February 22, 2022. Appellants have

not filed a response to the court’s jurisdictional inquiry to date.

Because Appellants have not presented this court with a final judgment or

appealable order, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P.

42.3(a).

Per Curiam