WADSWORTH BUSINESS CENTER-WILLOWBROOK LIMITED PARTNERSHIP v. Connell
775 S.W.2d 663
Tex. App.
1989
Check Treatment

*2 meantime, while second motion for re- HOWELL,1 Before LAGARDE and hearing pending, remains the movant’s ad- KINKEADE, JJ. versary files an for writ of er- ror Court. See TEX.R. ON SECOND MOTION FOR APP.P. REHEARING held, nearly impos- have under facts LAGARDE, Justice. distinguish, sible to that the filing of an of error Appellants with this filed timely have Court’s clerk causes after we modified original our judgment upon immediately, to attach appellants’ leav- this Court without mean- make time, appellees timely dismissal) have filed an order (except one of writ of error with the County v. National case. Mutu Ratcliff Co., al Fire Insurance given Texas. For reasons below, we hold that lack w.o.j.) dism’d — Dallas anything (on all with mot. reh’g). acknowl Ratcliff motion for rehearing. We therefore dis- edged, dictum, conceptu that there were miss for want of al difficulties if with the result: this Court jurisdiction by were divested of ap opinion We issued original on June plication’s filing, if the but 1988. Timely filed crossmotions for re- did acquire jurisdiction until this Court deliberating were filed. After disposed every filed motion motions, original opinion, withdrew remaining it, we expressly granted appellants’ questioned whether the divestiture of both certain respects, issued a new Courts’ would result. with a accordingly, on Feb- ruary 13,1989. S.W.2d at 77. We further days later, acknowl Fifteen on Feb- edged, dictum, again ruary appellants that our timely filed a second could, rehearing, the motion at least certain cir now cumstances, “obviously unjust While the second motion awaited its lead to issued, preparation noting 1. Inasmuch as the ordered deadline of a Justice Howell has dissent, pursuant operating to internal rule indicated he dissents. 5.09(c), 27,1989, expired April living Ratcliff was controlling During the time Id. Yet we felt that result.” nightmares that through procedural result, As authority left us choice. opinion, we faced us in our own had vexed a further motion yet case. same situation in another 100(d), pursuant filed to rule because we are set forth Doctors The facts do other felt that we lacked Appeals, 750 Facilities wise. *3 (Tex.1988). 177 We had rendered S.W.2d appellant filed his In in a in favor of Rose judgment on a verdict and, days of application for writ error three against Hos- wrongful-death action Doctors later, had filed a second rehear- Hospital pital. Rose v. Doctors Facili See Thus, this Court. id. with ties, 245 735 S.W.2d — Dallas for re- party same motion granted). party Each filed a —Ratcliff—had hearing pending and an with Court rehearing. for We sustained timely motion of error to the point error in Rose's one of simultaneously. The Su- Court a new and thereafter rendered applica- Hospital Ratcliffs filed a second preme judgment. Court dismissed Doctors rehearing but, for it could be motion of tion for writ of error for want upon, application Rose filed an for acted doing the an- tion. Its order so contained Hospi error. We held that Doctors writ of notation: “See: Cowan v. Fourth of second motion for should be tal’s (Tex.1987).” 31 Appeals, 722 S.W.2d 140 jurisdiction. The for want of (Feb. 10, 1988). Tex.Sup.Ct.J. 200 Cowan “[ajpparently, Supreme Court noted that nothing held that there was in the Texas appeals of the court of was Appellate of Procedure to “afford Rules application of filing of for writ an appeals deny of to courts discretion it of over the wholly divested right file party the to a motion for rehear- Hospital, 750 S.W.2d cause.” Doctors ing.” Cowan v. Fourth Court of 177-78. (Tex.1987) (per 140 cu- explicitly held that The riam). upon to rule this Court “had Although a court of Cowan involved Rehearing, Hospital’s Doctors Motion for peals’ attempt appellant to bar an from notwithstanding fact that filing any for whatsoev- error had been filed.” Doc- tion for writ of er, motion, id., could even a 179. The Hospital, 750 tors S.W.2d import miss the acknowledged: Supreme Court dismissing annotation on its order Rat- general principle that a lower court cliffs for of want power change to or vacate implication necessary The was that we had case, plenary in a after the failing upon act abused our discretion to higher at- jurisdiction of a tribunal has if he Ratcliff’s motion even However, is no tached. ... there basis appli- same had filed the was the who applying principles these to the situa- Court, thereby at- cation to the presented this case. tion plenary to tempting invoke that Court’s expressed in The rules authori- [earlier inevitable; jurisdiction. We awaited the principle more rest basic ties] a motion for to file a Ratcliff filed leave one should not interfere with petition for of mandamus with another, expecially complaint pre- His was Court. higher tribunal. the latter is a when C-7409, Nonetheless, in cause no. dictable. is, course, necessary to principle This F. Vincent administration orderly efficient Ratcliff denied Ratcliff peals, the However, justice justice. petition. Tex.Sup.Ct.J. 31 to his litigant leave one by a rule that allows served 1, 1988). (Jun. subsequently denied deprive the other of the of this appellate jurisdiction his motion for his voke (Jun. court, invoking 29,1988). merely by it first. More- Tex.Sup.Ct.J. leave. over, ruling upon motion, the court and act we must have the Hospital’s authority on Doctors Second Motion overrule the motion. If, Rehearing pertained would not circumstances that interfere fact, Doctors and now this court. In here, pertain only authority such a we have the and in- facilitate provide overrule a motion for then necessary predicate deed power adjudicatively. have no to act exercise jurisdiction.... power dispose of a motion in one (cita- Hospital, Doctors at 170 power clerk, way is the of a a court. not of omitted; added). emphasis tions Therefore, we concluded that had the acknowledged Court then grant, full as to over- well as Hospital, that our action in Doctors dis rule, Hospital’s second motion for missing Hospital’s second motion “coun result had, earlier, mentioned said expressly *4 by Supreme earlier Court au tenance[d]” grant that had the duty we had either to or thority. Sovereign Camp, Johnson v. Doctors Hospital’s overrule second mo- W.O.W., 125 Tex. 607- S.W.2d (1935). Supreme simply The Court over Johnson, ruled “to the extent that it con in litiga- The result the Hospital Doctors Hospi flicts with our decision in [Doctors again predictable: tion was Rose now filed Hospital, Doctors S.W.2d at tal].” rehearing third motion for in Court this opin 179. It did so on of authority and, simultaneously, filed a motion for that, according Court, Supreme ion petition prohibi- leave to file a for writ of “ “rightly ‘obviously criticized” Johnson as Supreme argued tion in the Court. Rose ” unjust.’ The authority cited for that criti interfering Supreme that we were with the cism in dictum our own Ratcliff requested Court’s the Su- Supreme 745 S.W.2d at 77. The preme prohibit Court to this re- did attempt Court to harmonize spondent, taking any further action in result with the result Doctors litigation. Hospital. an opinion Without but with an or- Supreme The Court concluded der, Supreme Court grant- conditionally legal duty had had to “either or ed Rose a writ prohibition. of Rose v. rehearing], overrule the motion de- [for Fifth of upon pending merits.” view of the [our] (1989). Its order expressly that our recited Hospital, Doctors at 179. We “opinion on and orders connected directed to vacate our order dismiss- were granting with Hospital’s Doctors [our] ing Hospital's Doctors motion for rehearing [second] conflicted] and to rule its merits. We with opinion in No. [the Court’s] February granted On did so. C-6577 Hospital] and [Doctors interfere^] Hospital’s Doctors second motion for re- with jurisdiction in [the Court’s] judg- hearing, reversed the trial court’s No. C-6635 Rose v. [Rose]”. ment, and remanded the cause Appeals, 778 S.W.2d at 66. Simply Hospital’s overruling trial. Doctors put second motion for have The order this at an Rose opinion remaining impasse. all Hospital resolved issues rule, given legal had duty this would have Su- had stated granting preme unequivocal jurisdiction overruling, over either Doc- rehear- Hospital’s cause. It would been an tors second motion for the entire have expedient solving jurisdic- ing; order stated that our method of the Rose however, granting connected our difficulty. Expediency, and orders with tional what the Court directed. motion conflicted its Doctors was not opinion. Hospital opinion ruling. us to make a we have It directed only “not legal duly office said that our would not exercise our case, the in- with,” still another “facili- Now we have but would fact interfere provide necessary predi- face the same di- and indeed stant in which we tate for,” cate Court’s do for re- lemma: what to with motion case; flatly in the the Rose order stated application for writ of after an ruling did interfere with Su- plenary jurisdiction error has invoked the preme jurisdiction. A writ man- upon the Court. Based compel do that damus would issue to us to recent action Supreme Court’s most prohibition would issue to which writ litigation, we conclude that we have Rose us to do. forbid plenary to act. The tion of the Court has been gives the Perhaps the Rose order Su- voked; therefore, further action whatever preme suggestion Court’s latest for break- case must be whatever occurs impasse. expressly permitted ing that If the appropriate. deems Supreme Court parties to new motions rehear- appellees’ are such that circumstances (complaining disposing action in egregious plication for of error works Hospital’s of Doctors rehearing) by depriving harm us of the for the first time for re- consider second motion Court: exert, hearing, then the Court can need not file a motion for [Rose] before, extraordinary as it exerted pre- it that harm. did measures avert What right to assert error related to serve order, again now its Rose can opinion, judgment, *5 the new and orders yet original proceeding. in an another order appeals. court of [******] In the absence generally applicable principles, clearly enunciated authoritive Hospital] not file need [Doctors Court, Supreme on which court has any rehearing motion in the court of when appeals preserve right to to assert of error are and an writ judg- error related to the new timely, simultaneously properly, both and appeals. ment and orders of the court of ****** filed, completely to the we defer Certainly satisfy neither our- Court. application, Any mo- successive Court, selves, nor the nor tion, or request other relief which proliferation economy, the endless in otherwise have been filed ap- writ for one extraordinary writs. One directly shall be filed peal enough. should be this court.... appellants’ second motion for dismiss Apparently, 66-67. the Su- for want order, preme Court, at least in its Rose has way prevent party one decided that the HOWELL, J., dissents. filing appli- (by prematurely a writ of error cation) cutting adversary par- from off HOWELL, Justice, dissenting. right points ty’s to be heard on raised in a that, clearly provide I The rules dissent. permit is to instances, certain dissatisfied basis, to parties, case-by-case on a as- mo- unqualified to file arguments in motions for sert rehearing in TEX.R. tion for this Court. Court. for the time right is mean- to be APP.P. willing Apparently, ingful simply defeated it cannot be determine, case-by-case writ-by- and through expedient opponent’s whim basis, parties points can writ when assert filing precipitous application for writ of for the first time to it and when error. any way they If there is other cannot. hold resolution is to sensible messages that this Court has reconcile the premature the writ was receiving been jurisdiction remained with our and that to see it. fail Appeals. Court of premature appli- A On February respondents all cation easily can be abated (appellants) with no loss of in this case filed a motion for rights any party. After our Court has extension of time to file ruled the second motion for rehear- plication asserting for writ of error ing, precipitous party may so advise the petitioners’ (appellees’) application for may Court and have his choice of premature of error under the (1) asking premature that his Court’s decision tion be considered in view of the fact that Facilities v. Fifth prematurity dissolved, has been fil- peals, (Tex.1988), 750 S.W.2d 177 ing application, revised withdraw- requesting a thirty-day extension of time premature application filing respond application. which to application at all.1 Subsequent to its in Rose v. law, logic; we are told is other (1989), illogical. recourse is the clerk Supreme Court, I therefore dissent way from the dismissal of of a letter the second motion for dated March signed by Barry Pickett, E. deputy, must be considered on its formed merits. counsel that “Motionfor extension reply granted

of time ... was with a ‘Reply OPINION ON notation. APPELLANTS’ MOTION is due to be filed FOR RECONSIDERATION OF SEC- days office 30 after overruling of the last REHEARING, OND MOTION FOR timely filed motion for rehearing by any ” AND, ALTERNATIVE, IN THE party in the Appeals.’ THIRD MOTION FOR REHEARING that, Appellants contend at least in this LAGARDE, Justice. appears to be This Appellants’ Court now has adhering position to its Hospi- Motion for Reconsideration of Second Mo- tal, granting and that its order extension Rehearing, and, Alternative, squared cannot be with our on re- *6 Rehearing,

Third Motion for ap- which jurisdiction that this Court lacks pellants aware, make this by way appellants’ rule on second motion for re- motion, ruling exhibits to such of the of the hearing. respon- Court in connection with (appellants’) unobjected-to dents’ appellants’ Motion In their Response reconsideration, for Extension of Time appellees to File to for have in- Application by peti- ofWrit Error filed formed they, petitioners, this Court that as (appellees) tioners on March 1989. object respondents’ The did not motion for time; verified following: exhibits reflect the extension of they that concur with Contrary majority (slip 1. assertion that the Court treated it as such. Rat- 3), op. County proper remedy the facts of v. National cliff’s would have been to with- Co., untimely Mutual Fire Ins. application draw his void and and (on w.o.j.) reh’g) —Dallas writ dism'd press are Appeals thereafter the Court of for a rul- simple distinguish. The same rehearing. there on his motion for If dissatisfied application by filed a writ succeeded his timely with the of the results and first contrast, rehearing. motion for our case jurisdictional application could then have opposing party’s filing involves the action of prosecuted. been Furthermore, application. unlike Presently, we deal with a second motion for being by majori the motion now rehearing. application by The writ filed ty rehearing. is a second motion for A second opponent to our movant was no means void is, in certain instances preceding rehearing. first being ever, present, permissible here action. How must, nevertheless, appellate procedure law of jurisdic bear in mind that a motion is interpreted prevent first be in a manner that will tional; motion, available, a second even when is opponent cutting off the valuable only optional. TEX.R.APP.P. us, litigant present, and obtain from ruling upon premature; a second motion for Ratcliffs writ preceded Any opens games- approach asmuch as it other the door to appears manship sharp practice. it was void. and s analysis of the appellants’ they join in

ruling; expressly and PORT DISTRIBUTING request CORP., for this Court pellants’ Appellant, motion for reconsideration. agreement parties, and Given FRITZ CHEMICAL regarding this uncertainty of the law COMPANY, Appellee. in our jurisdiction, as reflected opinion on second motion for No. 05-88-01041-CV. subject subsequent to a determination Texas, lacks Appeals Court that this Court grant appellants’ motion jurisdiction, we Dallas. so, reconsideration, having done we May 1989. third mo- appellants’ second and overrule rehearing. Nothing contained tions Rehearing July Denied 1989. herein, however, should be construed either we have lack HOWELL, Justice, dissenting. may

Again, I dissent. This Court jurisdictional As indicated

avoid the issue. writer, previous dissent of the jurisdiction to consider

should sustain our

the second motion that has presented this Court

been to us. What

may by-pass jurisdictional may

A not act. court without

16 TEX.JUR.3d Courts A § always assure its

must itself that proper

tion is and however whenever Id. question. into comes § questions even no-

Jurisdictional must be Id. motion.

ticed a court on its own

Moreover, may not con- be *7 Id. parties. by agreement of

ferred

§ proper a Texas court to

Neither is it advisory opinions. hypothetical

render Products, Inc. Puretex Lem- California Juice, Inc., 160 Tex. (1960). is estab- Until

lished, the second we should not address

motions now before us.

I most therefore dissent from the Court’s on the opinion. express I

recent before the court.

merits of the motions now