in Re: Stettner, Norman

• Court: Court of Appeals of Texas
• Decided: July 18, 2002
• Docket: 01-02-00667-CV
• Status: Published

Opinion

Opinion issued July 18, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-02-00204-CV

NORMAN STETTNER, Appellant

V.

APOLLO PAINT & BODY SHOP, INC., Appellee

On Appeal from the County Civil Court at Law No. 3

Harris County, Texas

Trial Court Cause No. 728,953

-----AND-----

NO. 01-02-00667-CV

IN RE NORMAN STETTNER, Realtor

Original Proceeding on Petition for Writ of Mandamus

ORDER ON MOTION FOR REHEARING AND PETITION FOR WRIT OF MANDAMUS

Relator, Norman Stettner ("Stettner"), seeks a writ of mandamus ordering the trial court to set aside its January 28, 2002 interlocutory order granting a bill of review, following a previous dismissal for want of prosecution. Because the trial court's order granting the bill of review was not a final, appealable order, we previously dismissed Stettner's appeal for want of jurisdiction. Stettner v. Apollo Paint & Body Shop, Inc., No. 01-02-00204-CV, (Tex. App.--Houston [1st Dist.] June 20, 2002, no pet. h.) (not designated for publication).

Stettner has now filed a "Motion for Rehearing, or in the Alternative, Petition for Writ of Mandamus." He requests that this Court consider his petition for writ of mandamus if we deny his motion for rehearing. As noted above, because the trial court's order granting the bill of review was interlocutory in nature and not a final, appealable order, we deny Stettner's motion for rehearing. See Tesoro Petroleum v. Smith, 796 S.W.2d 705, 705 (Tex. 1990).

In his petition for writ of mandamus, Stettner complains that the trial court improperly granted the bill of review because it lacked subject-matter jurisdiction. A writ of mandamus will only issue to correct a clear abuse of discretion or violation

of a duty imposed by law when there is no adequate remedy by appeal, and the relator has the burden to present the appellate court with a record sufficient to establish the right to mandamus. Walker v. Packer, 827 S.W.2d 833, 837-39 (Tex.1992) (orig. proceeding). The interlocutory nature of an order granting a bill of review does not render the granting of the bill of review unappealable, because there is an adequate remedy by appeal when the judgment of the trial court becomes final. In re Moreno, 4 S.W.3d 278, 280-81(Tex. App.--Houston [14th Dist.]1999, original proceeding) (citing Texas Mexican Ry., Co. v. Hunter, 726 S.W.2d 616, 617-18 (Tex. App.--Corpus Christi 1987, orig. proceeding)). Thus, Stettner has an adequate remedy by appeal.

We deny the petition for writ of mandamus.

PER CURIAM

Panel consists of Justices Hedges, Jennings, and Keyes.

Do not publish. Tex. R. App. P. 47.