WADSWORTH BUSINESS CENTER-WILLOWBROOK LIMITED PARTNERSHIP v. Connell

775 S.W.2d 663, 1989 WL 106543
CourtCourt of Appeals of Texas
DecidedMay 31, 1989
Docket05-87-00739-CV
StatusPublished
Cited by6 cases

This text of 775 S.W.2d 663 (WADSWORTH BUSINESS CENTER-WILLOWBROOK LIMITED PARTNERSHIP v. Connell) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
WADSWORTH BUSINESS CENTER-WILLOWBROOK LIMITED PARTNERSHIP v. Connell, 775 S.W.2d 663, 1989 WL 106543 (Tex. Ct. App. 1989).

Opinions

ON SECOND MOTION FOR REHEARING

LAGARDE, Justice.

Appellants have filed a timely second motion for rehearing, after we modified our original judgment upon appellants’ first motion for rehearing. In the meantime, appellees have timely filed an application for writ of error with the Supreme Court of Texas. For the reasons given below, we hold that we lack jurisdiction to do anything at all with appellants’ second motion for rehearing. We therefore dismiss for want of jurisdiction.

We issued our original opinion on June 9, 1988. Timely filed crossmotions for rehearing were filed. After deliberating the motions, we withdrew our original opinion, granted appellants’ motion for rehearing in certain respects, and issued a new opinion, with a new judgment accordingly, on February 13,1989. Fifteen days later, on February 28, appellants timely filed a second motion for rehearing, the motion now at issue. While the second motion awaited its ten-day response, on March 10, 1989 (the day that a response to appellants’ second motion was due), appellees filed an application for writ of error to the Supreme Court of Texas. We hold that by doing so, appel-lees placed the complete jurisdiction of this cause before the Supreme Court and totally divested this Court of jurisdiction.

The narrow question is whether this Court retains any jurisdiction over a cause when: (1) the Court, on rehearing, modifies its original judgment, vacates its original judgment and renders a new judgment, or hands down an opinion in connection with the overruling of a motion for rehearing; (2) a party desiring to complain of that action files a further motion for rehearing, pursuant to rule 100(d) of the Texas Rules of Appellate Procedure; and, (3) in the meantime, while the second motion for rehearing remains pending, the movant’s adversary files an application for writ of error to the Supreme Court. See TEX.R. APP.P. 100(d).

We have held, under facts nearly impossible to distinguish, that the filing of an application for writ of error with this Court’s clerk causes the jurisdiction of the Supreme Court to attach immediately, leaving this Court without authority to make any order (except one of dismissal) in the case. Ratcliff v. National County Mutual Fire Insurance Co., 745 S.W.2d 75, 77 (Tex.App.—Dallas 1988, writ dism’d w.o.j.) (on mot. for reh’g). Ratcliff acknowledged, in dictum, that there were conceptual difficulties with the result: if this Court were divested of its jurisdiction by the application’s filing, but if the Supreme Court did not acquire jurisdiction until this Court had disposed of every timely filed motion remaining pending before it, we expressly questioned whether the divestiture of both Courts’ jurisdiction would result. Ratcliff, 745 S.W.2d at 77. We further acknowledged, again in dictum, that our holding in Ratcliff could, at least under certain circumstances, lead to an “obviously unjust [665]*665result.” Id. Yet we felt that controlling authority left us no choice. As a result, we dismissed a further motion for rehearing, filed pursuant to rule 100(d), because we felt that we lacked jurisdiction to do otherwise.

In Ratcliff, the appellant had filed his application for writ of error and, three days later, had filed a second motion for rehearing with this Court. See id. Thus, the same party — Ratcliff—had a motion for rehearing pending with this Court and an application for writ of error to the Supreme Court pending simultaneously. The Supreme Court dismissed Ratcliffs application for writ of error for want of jurisdiction. Its order doing so contained the annotation: “See: Cowan v. Fourth Court of Appeals, 722 S.W.2d 140 (Tex.1987).” 31 Tex.Sup.Ct.J. 200 (Feb. 10, 1988). Cowan held that there was nothing in the Texas Rules of Appellate Procedure to “afford courts of appeals the discretion to deny a party the right to file a motion for rehearing.” Cowan v. Fourth Court of Appeals, 722 S.W.2d 140, 140 (Tex.1987) (per cu-riam).

Although Cowan involved a court of appeals’ attempt to bar an appellant from filing any motion for rehearing whatsoever, even a timely motion, id., we could not miss the import of the Supreme Court’s annotation on its order dismissing Rat-cliffs application for want of jurisdiction. The necessary implication was that we had abused our discretion in failing to act upon Ratcliff’s motion for rehearing, even if he was the same party who had filed the application to the Supreme Court, thereby attempting to invoke that Court’s plenary jurisdiction. We awaited the inevitable; Ratcliff filed a motion for leave to file a petition for writ of mandamus with the Supreme Court. His complaint was predictable. Nonetheless, in cause no. C-7409, Vincent F. Ratcliff v. Fifth Court of Appeals, the Supreme Court denied Ratcliff leave to file his petition. 31 Tex.Sup.Ct.J. 481 (Jun. 1, 1988). It subsequently denied his motion for rehearing of his motion for leave. 31 Tex.Sup.Ct.J. 543 (Jun. 29,1988).

During the time Ratcliff was living through the procedural nightmares that had vexed us in our own opinion, we faced the same situation in yet another case. The facts are set forth in Doctors Hospital Facilities v. Fifth Court of Appeals, 750 S.W.2d 177 (Tex.1988). We had rendered a judgment on a verdict in favor of Rose in a wrongful-death action against Doctors Hospital. See Rose v. Doctors Hospital Facilities, 735 S.W.2d 244, 245 (Tex.App.—Dallas 1987, writ granted). Each party filed a timely motion for rehearing. We sustained one point of error in Rose's motion for rehearing and thereafter rendered a new judgment. Doctors Hospital filed a second motion for rehearing but, before it could be acted upon, Rose filed an application for writ of error. We held that Doctors Hospital’s second motion for rehearing should be dismissed for want of jurisdiction. The Supreme Court noted that “[ajpparently, the court of appeals was of the opinion that the filing of an application for writ of error wholly divested it of jurisdiction over the cause.” Doctors Hospital, 750 S.W.2d at 177-78.

The Supreme Court explicitly held that this Court “had jurisdiction to rule upon Doctors Hospital’s Motion for Rehearing, notwithstanding the fact that an application for writ of error had been filed.” Doctors Hospital, 750 S.W.2d at 179. The Supreme Court acknowledged:

the general principle that a lower court has no power to vacate or change its judgment in a case, after the plenary jurisdiction of a higher tribunal has attached. ... However, there is no basis for applying these principles to the situation presented in this case.
The rules expressed in [earlier authorities] rest upon the more basic principle that one court should not interfere with the jurisdiction of another, expecially when the latter is a higher tribunal. This principle is, of course, necessary to the orderly and efficient administration of justice.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Gonzalez v. Sanchez
927 S.W.2d 218 (Court of Appeals of Texas, 1996)
Roy v. State
813 S.W.2d 532 (Court of Appeals of Texas, 1991)
Christopher v. State
779 S.W.2d 459 (Court of Appeals of Texas, 1989)
WADSWORTH BUSINESS CENTER-WILLOWBROOK LIMITED PARTNERSHIP v. Connell
775 S.W.2d 663 (Court of Appeals of Texas, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
775 S.W.2d 663, 1989 WL 106543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wadsworth-business-center-willowbrook-limited-partnership-v-connell-texapp-1989.