Wilbur Leon Bell v. Carnival Corporation, Carnival Cruise Line, Carnival Conquest

Opinion

DISMISS; and Opinion Filed April 2, 2014.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00047-CV

WILBUR LEON BELL, Appellant V. CARNIVAL CORPORATION, CARNIVAL CRUISE LINE, CARNIVAL CONQUEST, Appellees

On Appeal from the 44th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-1309652

MEMORANDUM OPINION Before Justices Bridges, O'Neill, and Brown Opinion by Justice O'Neill Wilbur Leon Bell seeks review of the trial court’s order granting appellee’s motion for

new trial and setting aside the default judgment. The trial court granted default judgment on

October 30, 2013. On November 27, 2013, appellees moved to set aside the default judgment

and for new trial. On December 23, 2013, the trial court granted appellees’ motion, set aside the

default judgment and granted a new trial. Appellant then filed a notice of appeal in this Court.

In a letter dated March 5, 2014, the Court questioned its jurisdiction over this appeal.

Specifically, we questioned whether there was a final judgment because the trial court granted

appellees’ motion for new trial. We instructed appellant to file a letter brief addressing our

concern and gave appellees the opportunity to respond. Both appellant and appellees have filed

letter briefs regarding our jurisdictional question. Generally, appeals may only be taken from final judgments. See Lehmann v. Har-Con

Corp., 39 S.W.3d 191, 195 (Tex. 2001). When a motion for new trial is granted, the case is

reinstated on the trial court’s docket and will stand for trial the same as though the previous

judgment never existed. See Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex.

2005). When a trial court grants a motion for new trial within its plenary power, such an order is

not subject to direct review or from a final judgment rendered after further proceedings in the

trial court. See Cummins v. Paisan Constr. Co., 682 S.W.2d 235, 236 (Tex. 1984). An order

granting a motion for new trial may be subject to mandamus review if the trial court did not

specifically state its reasons for granting the new trial. See In re United Scaffolding, Inc., 301

S.W.3d 661, 662 (Tex. 2010).

Here, appellees’ motion for new trial was timely filed and the trial court granted the

motion during its period of plenary power over the judgment. See TEX. R. CIV. P.329b (a), (e).

Thus, the complained-of order is not subject to our direct review. And, because appellant’s

notice of appeal does not meet the requirements of Texas Rule of Appellate Procedure 52, we

will not consider it as a petition for writ of mandamus. See TEX. R. APP. P. 52.

We dismiss this appeal for want of jurisdiction.

/Michael J. O'Neill/ MICHAEL J. O’NEILL JUSTICE

140047F.P05

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

WILBUR LEON BELL, Appellant On Appeal from the 44th Judicial District Court, Dallas County, Texas No. 05-14-00047-CV V. Trial Court Cause No. DC-1309652. Opinion delivered by Justice O'Neill. CARNIVAL CORPORATION, Justices Bridges and Brown participating. CARNIVAL CRUISE LINE, AND CARNIVAL CONQUEST, Appellees

In accordance with this Court’s opinion of this date, this appeal is DISMISSED. It is ORDERED that appellee CARNIVAL CORPORATION, CARNIVAL CRUISE LINE, and CARNIVAL CONQUEST recover their costs of this appeal from appellant WILBUR LEON BELL.

Judgment entered this 2nd day of April, 2014.

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