in Re Larry Clark

• Court: Court of Appeals of Texas
• Decided: July 21, 2004
• Docket: 10-03-00037-CV
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

No. 10-03-00037-CV

In re Larry Clark

Original Proceeding

DISSENTING OPINION
ON ORDER ON MOTION FOR REHEARING

        I respectfully dissent to the Court’s order on Larry Clark’s motion for rehearing.

      I dissent to transferring Clark’s motion for rehearing to the instant cause from Cause No. 10-02-00243-CV, styled In the Interest of B.A.C.  “[T]he plaintiff is ‘the master of the complaint[.]’”  Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831 (2002) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 398-99 (1987)); accord Heard v. Moore, 101 S.W.3d 726, 728 (Tex. App.—Texarkana 2003, pet. denied).  “Of course the party who brings a suit is master to decide what law he will rely upon.”  Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 12 (2003) (quoting Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913)); accord Heard at 728.  “Plaintiffs are masters of their complaints and remain so at the appellate state of a litigation.”  Webster v. Reproductive Health Servs., 492 U.S. 490, 512 (1989).  Clark chose to file a motion for rehearing in B.A.C., but not in the instant cause. 

      The cases that the Court cites are distinguishable.  Both concern appellate jurisdiction.  See Mueller v. Saravia, 826 S.W.2d 608, 609 (Tex. 1992) (“attempt to invoke appellate court jurisdiction”); Motor Vehicle Bd. v. El Paso Indep. Auto Dealers Ass’n, Inc., 1 S.W.3d 108, 111 (Tex. 1999) (misnomer (Motor Vehicle Div. for Motor Vehicle Bd.) does not affect standing).  The Supreme Court has “repeatedly held that a court of appeals has jurisdiction over any appeal in which the appellant files an instrument in a bona fide attempt to invoke the appellate court’s jurisdiction.”  Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997).  This court’s jurisdiction over Clark’s motion for rehearing is not disputed.  Apart from this rare exception for the invocation of appellate jurisdiction, a filing is effective only in the cause in which it is filed.  See Philbrook v. Berry, 683 S.W.2d 378, 379 (Tex. 1985) (orig. proceeding) (per curiam); see also Stone v. State, 931 S.W.2d 394, 396-97 (Tex. App.—Waco 1996, pet. ref’d); but see Tex. Instruments, Inc. v. Teletron Energy Mgt., Inc., 877 S.W.2d 276, 278 (Tex. 1994) (“clerical error”).

      The Court should not transfer Clark’s motion for rehearing to the instant cause.  Because the Court does so, I respectfully dissent.

      Since I believe that we were correct originally, the Court’s opinion that is being withdrawn is attached as an appendix to this opinion.

TOM GRAY

Chief Justice

Dissenting opinion delivered and filed July 21, 2004

Publish

APPENDIX