


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-06-00237-CV
 
Manuel Villegas,
                                                                      Appellant
 v.
 
Heidi Henke Morse,
                                                                      Appellee
 
 

From the County Court at Law
Walker County, Texas
Trial Court No. 8080CV
 

DISSENTING Opinion





 
          It is undisputed that we have no
jurisdiction in this appeal.  The majority concedes in the Abatement Order that
the judgment of the trial court does not address all of the claims that were
pending in the trial court.  Notwithstanding that they make this concession,
fully acknowledging that the judgment does not dispose of the merits of those
claims, they refuse to acknowledge that this deprives us of jurisdiction to do
anything beyond determining that we have no jurisdiction of the merits of this
appeal.  For some reason, the majority has become confused between (1) what occurs
when the trial court signed the judgment the trial court intended, which rules
on all the issues the trial court intended to rule on, but that judgment does
not achieve the result of being a final judgment as the judge intended, versus (2)
a judgment by a trial court that simply does not reflect the judgment the trial
court actually rendered.  The majority has begun to use the abatement process
to allow the trial court to make additional rulings, ruling on issues not
previously addressed or decided by the trial court.  These new rulings may make
a judgment final but the abatement process was not contemplated to be used for
making rulings on claims that were not previously addressed, even if the trial
court thought, albeit erroneously, that the result of its prior ruling was a
final judgment.
I would dismiss this appeal for want of
jurisdiction and await the time with patience until a final judgment has been
signed by the trial court.  Until that final judgment is actually signed, the
trial court has the jurisdiction to deal with this case as it sees fit,
considering motions for new trial and reconsideration, etc.[1] 

I certainly would not take the dictatorial
position of ordering the trial court to sign a final judgment in 30 days.  What
should we do if the trial court decides to set aside the prior interlocutory
order?  This is not a mandamus proceeding.
I dissent to abating this case and ordering the
trial court to rule on previously undecided issues within 30 days so that we will
have jurisdiction in an appeal where it does not otherwise exist.
                                                          TOM
GRAY
                                                          Chief
Justice
 
Dissenting
opinion delivered and filed September 13, 2006




[1]
 Villegas has filed a petition for writ of
mandamus, case number 10-06-00242-CV, in which he seeks an order compelling the
trial court to vacate a determination holding it had no jurisdiction to
consider a motion for new trial.  We should deal with that petition and this
attempted appeal together.  This is particularly apparent when you learn that
it is the record filed by Villegas in the mandamus proceeding the majority is
relying on in this appeal for this abatement order.  By the majority’s
statement in its abatement order, it appears they agree with the merits of the
petition – because, based on the majority’s abatement order, the trial court
does have jurisdiction to consider the motion for new trial filed by Villegas.


