M.A. Block Investment Company v. Whitten 20AC LLC and John W. Whitten

• Court: Court of Appeals of Texas
• Decided: April 23, 2021
• Docket: 05-21-00009-CV
• Status: Published

Opinion

DISMISS and Opinion Filed April 23, 2021

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00009-CV

M.A. BLOCK INVESTMENT COMPANY, Appellant V. WHITTEN 20AC LLC AND JOHN W. WHITTEN, Appellees

On Appeal from the 196th Judicial District Court Hunt County, Texas Trial Court Cause No. 88907

MEMORANDUM OPINION Before Justices Myers, Partida-Kipness, and Garcia Opinion by Justice Garcia Before the Court is appellees’ April 12, 2021 motion to dismiss the appeal and

cross-appeal. In the motion, appellees ask the Court to dismiss because the trial

court’s order which is the subject of these appeals has been vacated. A supplemental

clerk’s record with the trial court’s April 9, 2021 order was filed the same day as the

motion. Appellant did not file a response to the motion. See TEX. R. APP. P. 10.3(a).

A review of the record shows appellant filed a timely notice of appeal

following the trial court’s December 30, 2020 order granting appellees’ motion for

summary judgment. On January 28, 2021, appellees filed a motion to amend and/or modify the judgment, and thereafter, filed a cross-appeal. On April 9, 2021, the trial

court granted appellees’ motion and vacated the December 30, 2020 order. Because

the trial court vacated the order which was the basis for these appeals, there is no

final judgment, and these appeals are moot. See Cooper v. City of Plano, 05-12-

01445-CV, 2013 WL 3974099, at *1 (Tex. App. —Dallas Aug. 2, 2013, pet. denied)

(mem. op.) (when complained-of order was vacated by trial court, underlying cause

remains pending and no final judgment or appealable order exists to invoke appellate

court’s jurisdiction).

We grant the motion and dismiss the appeal and cross-appeal.

/Dennise Garcia/ DENNISE GARCIA JUSTICE

210009F.P05

–2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

M.A. BLOCK INVESTMENT On Appeal from the 196th Judicial COMPANY, Appellant District Court, Hunt County, Texas Trial Court Cause No. 88907. No. 05-21-00009-CV V. Opinion delivered by Justice Garcia. Justices Myers and Partida-Kipness WHITTEN 20AC LLC AND JOHN participating. W. WHITTEN, Appellees

In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

It is ORDERED that appellees WHITTEN 20AC LLC AND JOHN W. WHITTEN recover their costs, if any, of this appeal from appellant M.A. BLOCK INVESTMENT COMPANY.

Judgment entered April 23, 2021

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