Opinion
No. 08-13-00088-CV
08-12-2013
UNIT 82 JOINT VENTURE, FIVE STAR HOLDING COMPANY, INC., FIVE STAR HOLDING MANAGEMENT, L.L.C. AND 1320/1390 DON HASKINS, LTD., Appellants, v. ROBB EVANS & ASSOCIATES LLC AND INTERNATIONAL COMMERCIAL BANK OF CHINA, Appellees.
Appeal from the
327th District Court
of El Paso County, Texas
(TC# 2005-1987)
ORDER
This appeal is before the Court to determine its scope. More precisely, we must determine whether Appellants can raise in this appeal those issues previously raised in cause number 08-08-00159-CV, none of which were ever addressed by this Court or the Supreme 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. 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.
Appellants have erroneously interpreted our opinion as dismissing the appeal. The opinion actually dismissed the ancillary receivership proceeding below, not the appeal.
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 but should have abated 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. In accordance with that 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. 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. In an order issued this same date, we determined that this Court does not have jurisdiction to address the merits of the issues raised by the Appellants in the briefs filed in cause number 08-08-00159-CV. Our order did not, however, resolve whether Appellants can raise any of those same issues in this appeal.
The notice of appeal was filed in a new cause number because 08-08-00159-CV had been inactivated and stored following our receipt of the Supreme Court's mandate reversing our decision and remanding the case to the trial court.
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A mandate formally commands a lower court to obey a higher court's judgment. In re Elite Door & Trim, 362 S.W.3d 199, 200 (Tex.App.--Dallas 2012, orig. proceeding), citing TEX.R.APP.P. 51.1(b). On remand, the trial court's jurisdiction is limited to the issues specified in the mandate and the scope of the mandate is determined by referring to both the appellate court's opinion and the mandate itself. In re Elite Door & Trim, 362 S.W.3d at 200-201; Cessna Aircraft Co. v. Aircraft Network, LLC, 345 S.W. 3d 139, 144 (Tex.App.--Dallas 2011, no pet.).
An intermediate appellate court has jurisdiction to review a judgment entered by a trial court following reversal and remand to the trial court. See Phillips v. Bramblett, --- S.W.3d ---, 2013 WL 2664056 at *6-7 (Tex. June 7, 2013), Phillips, --- S.W.3d ---, 2013 WL 2664056 at *6-7. We conclude that we have jurisdiction of this appeal. The only remaining issue is the scope of the appeal.
Under the law of the case doctrine, a court of appeals is ordinarily bound by its initial decision if there is a subsequent appeal in the same case. Briscoe v. Goodmark Corporation, 102 S.W.3d 714, 716 (Tex. 2003). The law of the case doctrine is defined as that principle under which questions of law decided on appeal to a court of last resort will govern the case throughout its subsequent stages. Id., citing Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986). By narrowing the issues in successive stages of the litigation, the law of the case doctrine is intended to achieve uniformity of decision as well as judicial economy and efficiency. Id. The doctrine is based on public policy and is aimed at putting an end to litigation. Id.
We conclude that the law of the case doctrine does not bar our consideration of the issues originally raised in cause number 08-08-00159-CV because neither this Court nor the Supreme Court decided those issues. Finding no other bar to appellate review of those issues, we conclude that they are included within the scope of this appeal. The parties will be required, however, to file new briefs.
The clerk's and reporter's records filed in cause number 08-08-00159-CV have been temporarily "checked out" to this Court by the Supreme Court. The parties will be permitted to use the clerk's and reporter's records filed in cause number 08-08-159-CV in this appeal subject to any further order of the Supreme Court. If the Supreme Court requires the record returned to it prior to resolution of this appeal, Appellants will be responsible for filing a duplicate record to be used in this appeal. Appellants' brief is due to be filed 30 days from the date of this order.
IT IS SO ORDERED THIS 12TH DAY OF AUGUST, 2013.
PER CURIAM Before McClure, C.J., Rivera and Rodriguez, JJ.