Amf Mechanical Corporation v. Norma L. Bermudez

• Court: Court of Appeals of Texas
• Decided: April 25, 2013
• Docket: 13-13-00105-CV
• Status: Published

Opinion

NUMBER 13-13-00105-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

AMF MECHANICAL CORPORATION, APPELLANT,

v.

NORMA L. BERMUDEZ, APPELLEE. ____________________________________________________________

On appeal from the 404th District Court of Cameron County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Justices Rodriguez, Garza and Perkes Memorandum Opinion Per Curiam

Appellant, AMF Mechanical Corporation, attempted to perfect an appeal from an

order signed January 10, 2013, denying its motion for summary judgment. Upon review

of the documents before the Court, it appeared that the appeal was not timely perfected.

Appellant was advised that the appeal would be dismissed if the defect was not corrected

within ten days from the date of receipt of the Court’s directive. On February 14, 2013, appellant filed an opposed motion to extend time to file

notice of appeal. Appellee has responded that the Court lacks jurisdiction over the

appeal because it is not an interlocutory appeal that is specifically authorized by Section

51.014 of the Texas Civil Practice and Remedies Code. Appellant has replied that the

order is appealable pursuant to Section 51.014(d)(1),(2) in that the order involves a

controlling question of law in which there is a substantial ground for difference of opinion

and that an immediate appeal from the order may materially advance the ultimate

termination of the litigation. Appellee has filed a motion to dismiss.

Appeals from interlocutory orders, when allowed by statute, are accelerated

appeals. TEX. R. APP. P. 28.1. In order to perfect an accelerated appeal of an

interlocutory order, the party is required to file a notice of appeal “within 20 days after the

judgment or order is signed.” Id. at R. 26.1(b). Appellant filed a motion for extension of

time under Texas Rule of Appellate Procedure 26.3. See id. at R. 26.3; see also Houser

v. McElveen, 243 S.W.3d 646, 646-47 (Tex. 2008) (stating that a notice of appeal should

be considered timely if filed within fifteen days after the filing deadline and accompanied

by a motion for extension of time with a reasonable explanation for the delay). The order

was signed on January 10, 2013, and twenty days thereafter is January 30, 2013.

Appellant’s notice of appeal was filed on February 12, 2013, within fifteen days of January

30, 2013.

In terms of appellate jurisdiction, appellate courts only have jurisdiction to review

final judgments and certain interlocutory orders identified by statute. See Lehmann v.

Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); TEX. CIV. PRAC. & REM. CODE ANN. §

51.012 and § 51.014 (West Supp. 2011). Under the 2011 amendment to Section

2 51.014(d) of the Civil Practice and Remedies Code, a trial court may, by written order,

permit an appeal from an order that is not otherwise appealable. TEX. CIV. PRAC. & REM.

CODE ANN. § 51.014(d). Section 51.014(f) provides that an appellate court may accept

an appeal permitted by Subsection (d) if the appealing party, not later than the 15th day

after the date the trial court signs the order to be appealed, files in the court of appeals

having appellate jurisdiction over the action an application for interlocutory appeal

explaining why an appeal is warranted under Subsection (d).

Review of the clerk’s record indicates that appellant has not obtained the trial

court’s permission to appeal. See TEX. R. CIV. P. 168 (“On a party’s motion or on its

own initiative, a trial court may permit an appeal from an interlocutory order that is not

otherwise appealable, as provided by statute. Permission must be stated in the order to

be appealed.”); TEX. R. APP. P. 28.3(a)(“When a trial court has permitted an appeal from

an interlocutory order that would not otherwise be appealable, a party seeking to appeal

must petition the court of appeals for permission to appeal.”). Accordingly, the

interlocutory order appellant seeks to appeal is not appealable.

The Court, having considered the clerk’s record, motions and responses, is of the

opinion that the appeal should be dismissed for want of jurisdiction. Accordingly, the

appeal is DISMISSED FOR WANT OF JURISDICTION. See TEX. R. APP. P. 42.3(a).

Appellee’s motion to dismiss is GRANTED. Appellant’s motion to extend time to file

notice of appeal is likewise DISMISSED FOR WANT OF JURISDICTION.

PER CURIAM

Delivered and filed the 25th day of April, 2013.