TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
v.
Motor Vehicle Board of the Texas Department of Transportation and
Liberty Coach, Inc., Appellees
NO. GN400161, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
On September 18, 2003, the Motor Vehicle Board issued an order in its docket number 02-0051-LIC, Buddy Gregg Motor Homes, Inc. v. Liberty Coach, Inc. Buddy Gregg Motor Homes, Inc. ("Buddy Gregg"), a franchised recreational vehicle dealer, alleged that Liberty Coach, Inc. ("Liberty"), a luxury motor coach manufacturer, wrongfully terminated their franchise agreement, failed to re-purchase post-termination inventory, conducted unlicensed operations, and violated a statutory requirement of good faith and fair dealing. Buddy Gregg then filed its petition for judicial review, docketed in the 353rd District Court as cause number GN400161. Subsequently, Liberty Coach filed its own petition for judicial review from the same agency order, docketed as cause GN400318 in the 353rd District Court.
Buddy Gregg filed a notice removing its trial-court cause to this Court. See Tex. Occ. Code Ann. § 2301.751(b) (West 2004) (provision for removing Motor Vehicle Board proceeding to Third Court of Appeals). Buddy Gregg's cause was docketed as our cause 03-04-00200-CV. Liberty then removed its cause, now our cause 03-04-00201-CV, and filed a motion to consolidate that cause and cause 03-04-00200-CV on the basis that both causes involved the same administrative order, parties, record, and issues. The Motor Vehicle Board joined Liberty in that motion. Buddy Gregg, however, vigorously opposed the motion to consolidate and also moved to dismiss cause 03-04-00201-CV. (1)
Buddy Gregg's opposition to consolidation is based on its contention that this Court lacks jurisdiction over cause number 03-04-00201-CV, the cause Liberty removed, because the cause is moot and Liberty lacks capacity to bring the proceeding. Buddy Gregg has filed a motion to dismiss Liberty's appeal in cause 03-04-00201-CV raising these issues as well.
Both of these removed causes arise from the same agency order. The motion to consolidate filed by Liberty and the Motor Vehicle Board, as supplemented, is granted. We will consolidate cause 03-04-00201-CV into cause 03-04-00200-CV for all purposes. In the agency order at issue, Liberty appears to be the substantially prevailing party. Buddy Gregg removed its case to this Court first, thus in essence filing the first notice of appeal. Buddy Gregg will be the appellant in 03-04-00200-CV; Liberty becomes the cross-appellant. The Motor Vehicle Board and Liberty will be appellees; Buddy Gregg and the Motor Vehicle board will be cross-appellees. The appeal will continue under the style Buddy Gregg Motor Homes, Inc./Liberty Coach, Inc. v. Motor Vehicle Board of the Texas Department of Transportation and Liberty Coach, Inc./Motor Vehicle Board of the Texas Department of Transportation and Buddy Gregg Motor Homes, Inc. (2)
The motion to dismiss, as supplemented, will be carried to the merits and considered as challenging Liberty's ability to bring the cross-appeal. The motion to expedite and motion to suspend briefing schedules are dismissed. (The motions to extend time to file briefs have previously been granted.) Liberty's appellant's brief in 03-04-00201-CV now is its cross-appellant's brief in 03-04-00200-CV. All briefs to be filed in the posture of an appellee or cross-appellee in 03-04-00200-CV are due thirty days from the date of this order. Reply briefs are then due according to the timetable set out in Texas Rule of Appellate Procedure 38.
Because there will be no further filings in 03-04-00201-CV, that cause will be abated in a separate memorandum opinion.
It is ordered June 18, 2004.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Kidd and B. A. Smith
1. To date, the following documents have been filed: the joint motion to consolidate which is a joint motion only between two of the three parties, the response to the motion to consolidate, a reply to the response to the motion to consolidate, Buddy Gregg's motion to dismiss Liberty's appeal in cause 03-04-00201-CV, a response to the motion to dismiss, a supplement to that response, a supplement to the motion to consolidate and motion to expedite, a reply to the response to the motion to dismiss, an unopposed motion to extend time for filing briefs, a response to the unopposed motion objecting to certain language, a supplement to the motion to Buddy Gregg's motion to dismiss, another joint motion that involves only two of the three parties requesting that the normal briefing schedule be suspended and a special schedule be set, a response to that motion, and a response to the supplement to Buddy Gregg's motion to dismiss.
2. A two-volume clerk's record and one box of exhibits have been filed in 03-04-00200-CV. Shortly after the motion to consolidate was filed in 03-04-00201-CV, a one-volume clerk's record was filed in that cause. That clerk's record is now transferred to cause 03-04-00200-CV.