Newsom, Terry & Newsom, LLP and Steven K. Terry v. Henry S. Miller Commercial Company

DISMISS and Opinion Filed December 22, 2022




                                       S
                                       In The
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                No. 05-22-00737-CV

     NEWSOM, TERRY & NEWSOM, LLP AND STEVEN K. TERRY,
                         Appellants
                            V.
       HENRY S. MILLER COMMERCIAL COMPANY, Appellee

                On Appeal from the 134th Judicial District Court
                             Dallas County, Texas
                    Trial Court Cause No. DC-09-01306-G

                         MEMORANDUM OPINION
                 Before Justices Pedersen, III, Goldstein, and Smith
                              Opinion by Justice Smith
      This appeal challenges the trial court’s June 28, 2022 order compelling post-

judgment discovery in aid of enforcement of a superseded judgment.             The

superseded judgment was the subject of appellate cause number 05-20-00379-CV

(“the main appeal”), and appellants also challenged the appealed order here in that

appeal by way of a motion for review under Texas Rule of Appellate Procedure 24.2

and petition for writ of injunction.

      At appellants’ request, we abated this appeal pending disposition of the main

appeal. On September 29, 2022, after our opinion and judgment in the main appeal
issued reversing the superseded judgment,1 we reinstated this appeal. We noted, in

our order reinstating the appeal, that we had denied as moot the motion for review

and petition for writ of injunction in the main appeal in light of that appeal’s

disposition. See Seals v. City of Dallas, 

 (Tex. App.—Dallas

2008, no pet.) (issue becomes moot when controversy no longer exists). And,

because that appeal’s disposition appeared to moot this appeal as well, we ordered

appellants to show cause why this appeal should not be dismissed for want of

jurisdiction. See Nat’l Collegiate Athletic Ass’n v. Jones, 

 (Tex.

1999) (“Appellate courts are prohibited from deciding moot controversies.”).

       In response, appellants do not dispute that our opinion and judgment in the

main appeal moot this appeal, but they observe that our mandate in that appeal has

not yet issued and ask that we abate this appeal again until the “outcome” in the main

appeal becomes final in our Court or, should a petition for review be filed in the

Texas Supreme Court, until it becomes final there. We note that our plenary power

over the main appeal has expired and, to that extent, the “outcome” in the main

appeal has become final in our Court even though our mandate has not yet issued.

See TEX. R. APP. P. 19.1 (establishing timeframe for expiration of appellate court’s

plenary power); see also id. 18.1 (establishing timeframe for issuance of mandate).

We decline to abate this appeal any further.



   1
     See Newsom, Terry & Newsom, LLP v. Henry S. Miller Commercial Co., 05-20-00379-CV, 

, *1 (Tex. App.—Dallas Aug. 31, 2022, no pet. h.).
                                           –2–
      Because the appeal has become moot, we dismiss it for want of jurisdiction.

See id. 42.3(a).



                                         /Craig Smith/
                                         CRAIG SMITH
                                         JUSTICE

220737F.P05




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                                 S
                          Court of Appeals
                   Fifth District of Texas at Dallas
                                JUDGMENT

NEWSOM, TERRY & NEWSOM,                     On Appeal from the 134th Judicial
LLP AND STEVEN K. TERRY,                    District Court, Dallas County, Texas
Appellants                                  Trial Court Cause No. DC-09-01306-
                                            G.
No. 05-22-00737-CV        V.                Opinion delivered by Justice Smith,
                                            Justices Pedersen, III and Goldstein
HENRY S. MILLER                             participating.
COMMERCIAL COMPANY,
Appellee

     In accordance with this Court’s opinion of this date, we DISMISS the appeal.

       We ORDER that appellee Henry S. Miller Commercial Company recover its
costs, if any, of this appeal from appellants Newsom, Terry & Newsom, LLP and
Steven K. Terry.


Judgment entered December 22, 2022.




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