Appeal from the 327th District Court of El Paso County, Texas (TC# 2005-1987)
Before McClure, C.J., Rivera and Rodriguez, JJ.
ORDER
PER CURIAM
This appeal is before the Court to determine whether it has jurisdiction. The question is whether issues which were never addressed in the original appeal to this Court can be addressed following reversal of our judgment by the Supreme Court and remand to the trial court.
On February 9, 2011, this Court issued an opinion in Unit 82 Joint Venture v. MediaCopy Texas, Inc., 349 S.W.3d 42 (Tex.App.–El Paso 2010) holding that a judgment entered by the trial court in an ancillary receivership action was void because it violated an automatic bankruptcy stay (referred herein as cause number 08-08-00159-CV). We vacated the judgment of the trial court and dismissed the underlying case without addressing the merits of the twenty-five issues presented on appeal by the Appellants.[1] The receiver, Robb Evans, the auctioneer who liquidated the property, Maynard Industries, Inc., and the bank, International Commerce Bank of China, Los Angeles (ICBC) filed a petition for review.
On August 31, 2012, the Supreme Court reversed our judgment, holding that we should not have addressed whether the ancillary receivership violated a bankruptcy stay without first abating the appeal to the trial court to resolve a factual dispute related to that issue. Evans v. Unit 82 Joint Venture, 377 S.W.3d 694 (Tex. 2012). The Supreme Court, rather than remanding the case to this Court with instructions to abate to the trial court for the limited purpose of resolving the bankruptcy stay issue, remanded the case directly to the trial court because it was "more expeditious to do so." Evans, 377 S.W.3d at 695. The Supreme Court issued its mandate on October 12, 2012. According to TAMES, the Supreme Court stored the case, including the appellate record, on January 14, 2013 with the notation "Supreme Court disposition is final." The appellate record retained by the Supreme Court included three volumes of the clerk’s record, three volumes of the supplemental clerk’s record, twelve volumes of the reporter’s record, and four exhibit volumes.
In accordance with the Supreme Court’s mandate, the trial court held a hearing, and by written order signed on March 22, 2013, resolved the factual dispute and determined that the ancillary receivership did not violate the bankruptcy stay. On that same date, the trial court also entered an order terminating the ancillary receivership and discharging the ancillary receiver because the receivership expired by statute on March 24, 2013. Unit 82 Joint Venture, Five Star Holding Company, Five Star Holding Management, and 1320/1390 Don Haskins, Ltd., filed a notice of appeal from the trial court’s new orders and the appeal has been docketed as cause number 08-13-00088-CV.[2] ICBC (now known as Mega International Commercial Bank) filed a motion to consolidate cause numbers 08-08-00159-CV and 08-13-00088-CV. Although ICBC has since withdrawn its request, our review of the motion to consolidate the two appeals caused us to question whether the Court has jurisdiction of cause number 08-08-00159-CV given that jurisdiction over that appeal was not returned to this Court by the Supreme Court. Consequently, we requested that the parties address the jurisdictional issue.
Citing Phillips v. Bramblett, __S.W.3d__, 2013 WL 2664056 (Tex. June 7, 2013), Appellants argue that we have jurisdiction of cause number 08-08-00159-CV and we must address the merits of the issues never addressed in that appeal. In Phillips, the Supreme Court held that an intermediate appellate court has jurisdiction to review a final judgment entered by a trial court following reversal and remand to the trial court for entry of a new judgment. See Phillips, __S.W.3d __, 2013 WL 2664056 at *6-7. The instant case presents a different procedural scenario than Phillips because the trial court’s judgment was not reversed and the Supreme Court did not instruct the trial court to enter a new judgment consistent with its opinion. It instead remanded the cause to the trial court to resolve a factual dispute regarding whether the receivership proceeding violated the automatic bankruptcy stay.
The Supreme Court’s reversal of our opinion and judgment issued in cause number 08-08-00159-CV had the effect of placing the parties in the same position that they occupied before the judgment was rendered by this Court. See Swank v. Cunningham, 258 S.W.3d 647, 663 (Tex.App.–Eastland 2008, pet. denied); City of Houston v. Walsh, 27 Tex.Civ.App. 121, 66 S.W. 106, 108 (Tex.Civ.App. 1901, writ ref’d). If the case had been remanded to us, jurisdiction of the appeal would have been returned to this Court and the appeal would have been "at issue" –appellate court jargon meaning that the briefs have been filed but the case has not been submitted. We would have, of course, abated the appeal and remanded it to the trial court with instructions to resolve the disputed fact issue. The Supreme Court did not, however, return jurisdiction over cause number 08-08-00159-CV by remanding it to this Court. As an indication that the Supreme Court intended for its decision in cause number 08-08-00159-CV to be a final one, the Clerk of the Supreme Court did not return the appellate record to this Court even though the record is necessary to our review of the issues never reached in the first appeal. The record has, however, been "checked out" to this Court for our use, but only after a written request for it was submitted to the Supreme Court and approved.[3]
We conclude that we do not have jurisdiction of cause number 08-08-00159-CV because the Supreme Court did not return jurisdiction of that appeal to this Court. Ordinarily, we would dismiss an appeal upon determining we lacked jurisdiction, but in this case, a final judgment has been entered by the Supreme Court and its mandate has issued. The Clerk of the Court is directed to remove the appeal from the docket.
IT IS SO ORDERED
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Notes:
[1] Appellants have erroneously interpreted our opinion as dismissing the appeal. The opinion actually dismissed the ancillary receivership proceeding below, not the appeal.
[2] The notice of appeal was filed in a new cause number because 08-08-00159-CV had been deactivated and stored following our receipt of the Supreme Court’s mandate reversing our decision and remanding the case to the trial court.
[3] While the Supreme Court viewed remanding the case directly to the trial court as "more expeditious" it has been anything but expeditious for the parties and this Court. Like the parties, we have had difficulty accessing the appellate record because the Supreme Court did not return it to us as it normally would in a case remanded to the court of appeals. Instead, the Court has applied its "Order Regarding Disposition of Court Papers in Civil Cases" whereby the Supreme Court retains the appellate record whenever it reverses and remands a case to the trial court. See Tex.R.App.P. Appendix B. The Supreme Court keeps and preserves the records of the case until they are turned over to State Archives as provided by law. Id. The obvious logic behind this rule is that the court of appeals will have no further use of the appellate record because the appeal has been concluded. In order to obtain the record, we were required by the Supreme Court to file a written request to "check out" the appellate record conditioned on our promise to return it. Remand to the trial court has also caused both the Court and the parties to wrestle with the jurisdictional and procedural issues created by that action. Further, it has possibly resulted in unnecessary expense for the Appellants because it remains to be seen whether the Supreme Court will permit the Court to retain the appellate record until the appeal in cause number 08-13-00088-CV has concluded. Appellants may be required to pay for a duplicate record to be used in that appeal.
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