Summary
denying petition for permissive review, observing that Campus Invs. v. Cullever, 144 S.W.3d 464 (Tex. 2004) does not conflict with Mabon Ltd. v. Afri-Carib Enterprises, Inc., 369 S.W.3d 809 (Tex. 2012) in a "bill of review context"
Summary of this case from Balkan Express, LLC v. HollinsOpinion
No. 05-14-00617-CV
07-21-2014
CHARLES JONES, Appellant v. JAMES P. NEIL, Appellee
DISMISS; and Opinion Filed July 21, 2014.
On Appeal from the 59th Judicial District Court
Grayson County, Texas
Trial Court Cause No. CV-12-2015
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Lang-Miers and Brown
Opinion by Justice Lang-Miers
Pursuant to Texas Civil Practice and Remedies Code section 51.014(d) and Rule of Appellate Procedure 28.3, Charles Jones has filed a petition for permissive interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d) (West Supp. 2013); TEX. R. APP. P. 28.3. We may accept an interlocutory appeal pursuant to section 51.014(d) of the civil practice and remedies code if (1) the order being appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion, and (2) an immediate appeal from the order may materially advance the ultimate termination of the litigation. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d). In his petition, Jones seeks review of the trial court's second amended order granting bill of review and motion for permissive appeal. That order provides in relevant part as follows:
the Court finds that there is a substantial ground for difference of opinion as to whether Mabon Ltd. v. Afri-Carb Enters., Inc., 369 S.W.3d 809 (Tex. 2012) holds that when a bill of review petitioner did not receive notice of the underlying judgment there is no inquiry into whether the bill of review petitioner or his counsel had any negligence in the failure to receive notice. The Court finds that this holding could be in conflict with other cases including but not limited to Campus Investments, Inc. v. Cullever, 144 S.W.3d 464 (Tex. 2004).We have reviewed the appellate court cases that apply Mabon in a bill of review context and do not find any disagreement as to Mabon's holding. See Saint v. Bledsoe, 416 S.W.3d 98 (Tex. App.--Texarkana 2013, no pet.); Uribe v. Uribe, No. 04-12-00629-CV, 2013 WL 4683867 (Tex. App.--San Antonio Aug. 30, 2013, no pet.). We also have reviewed Cullever and do not find it conflicts with Mabon. Accordingly, we conclude no substantial difference of opinion exists regarding the controlling question of law in this case, deny the petition, and dismiss the appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d)(1); TEX. R. APP. P. 42.3(a).
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JUSTICE
140617F.P05
JUDGMENT
CHARLES JONES, Appellant V. JAMES P. NEIL, Appellee No. 05-14-00617-CV
On Appeal from the 59th Judicial District
Court, Grayson County, Texas
Trial Court Cause No. CV-12-2015.
Opinion delivered by Justice Lang-Miers.
Chief Justice Wright and Justice Brown
participating.
In accordance with this Court's opinion of this date, we DISMISS the appeal.
We ORDER that appellee James P. Neil recover his costs, if any, of this appeal from appellant Charles Jones.