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]