File: 070525F - From documents
transmitted: 03/10/2008
DISMISS and
Opinion Filed March 10, 2008
In The
Court of Appeals
Fifth
District of Texas at Dallas
............................
No. 05-07-00525-CV
............................
PRUDENCE A. DIVINCENZO, Appellant
V.
SEARS, ROEBUCK AND CO.,
Appellee
.............................................................
On Appeal from the County Court at Law No.
1
Dallas County,
Texas
Trial Court Cause No.
CC-05-15914-A
.............................................................
MEMORANDUM
OPINION See
Footnote 1
Before Justices Morris, FitzGerald, and Lang
Opinion By Justice FitzGerald
Prudence A. DiVincenzo
sued Sears, Roebuck and Co. (“Sears”) alleging improper installation of an HVAC unit caused damage to her property.
Sears did not answer, and DiVincenzo obtained a default judgment. Sears sought a
reversal more than thirty days after the judgment was signed; it filed a motion
for new trial arguing it had not received notice of the default judgment until
some six weeks after the judgment was signed. The trial court found in Sears's
favor concerning the date it received notice and granted Sears's motion for new
trial.
DiVincenzo brought a
mandamus proceeding in this Court, claiming the trial court had no authority to grant the motion for new trial; the petition
was denied. The supreme court also denied DiVincenzo's petition for mandamus
relief. DiVincenzo then moved the trial court to reconsider its rulings; the
trial court denied the motion. Finally, DiVincenzo moved to non-suit her claims
against Sears, and the trial court signed an order dismissing the case without
prejudice.
DiVincenzo attempts in
this cause to appeal the trial court's finding concerning the date of Sears's notice, the order granting Sears a new
trial, and the order denying reconsideration of those two rulings. This attempt
necessarily fails. We agree with Sears that the substance of DiVincenzo's appeal
is a challenge to the trial court's order granting a new trial. An order
granting a motion for new trial is generally not reviewable on appeal. Wall
v. Tex. Dep't of Family & Protective Servs., 173 S.W.3d 178, 184 n.2
(Tex. App.-Austin 2005, no pet.) (citing Wilkins v. Methodist Health Care
Sys., 160 S.W.3d 559, 563 (Tex. 2005)). Moreover, Divincenzo's voluntary
non-suit vitiated all interlocutory orders. See In re Bennett, 960 S.W.2d
35, 38 (Tex. 1997). Indeed, Divincenzo's non- suit extinguished the pending case
or controversy. See Univ. of Tex. Med. Branch at Galveston v. Estate of
Blackmon, 195 S.W.3d 98, 100 (Tex. 2006).
Divincenzo's own action
in dismissing her claims has rendered her appeal moot. Accordingly, we dismiss this appeal.
KERRY P.
FITZGERALD
JUSTICE
070525F.P05
Footnote
1
We conclude the dispositive issue before us is clearly settled in law.
Accordingly, we issue this memorandum opinion
pursuant to Texas Rule of Appellate Procedure 47.4.
File Date[03/10/2008]
File Name[070525F]
File
Locator[03/10/2008-070525F]