David Soliz v. J and B Hicks, Jerry Hicks, Delores Hicks and Dustin Dietert/ Individually

• Court: Court of Appeals of Texas
• Decided: August 8, 2024
• Docket: 01-23-00604-CV
• Status: Published

Opinion

Opinion issued August 8, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00604-CV ——————————— DAVID SOLIZ, Appellant V. J AND B HICKS, INC., US 69 ENTERPRISE LLC, DELORES HICKS, JERRY HICKS, AND DUSTIN DIETERT, Appellees

On Appeal from the 80th District Court Harris County, Texas Trial Court Case No. 2022-66023

MEMORANDUM OPINION

Appellant, David Soliz, filed a notice of appeal on August 16, 2023 seeking

to appeal the trial court’s July 17, 2023 order denying his motion for new trial. We

dismiss the appeal for lack of jurisdiction. This Court generally has jurisdiction only over appeals from final judgments

and specific interlocutory orders that the Legislature has designated as appealable

orders. See TEX. CIV. PRAC. & REM. CODE § 51.012; CMH Homes v. Perez, 340

S.W.3d 444, 447–48 (Tex. 2011); see also TEX. CIV. PRAC. & REM. CODE §

51.014(a) (authorizing appeals from certain interlocutory orders). As noted above,

appellant attempts to appeal the trial court’s denial of his motion for new trial. But

“[a]n order denying a motion for new trial is not independently appealable.” Fletcher

v. Ahrabi, No. 01-12-00794-CV, 2012 WL 6082915, at *1 (Tex. App.—Houston

[1st Dist.] Dec. 6, 2012, no pet.) (mem. op.) (citing Overka v. Bauri, No. 14-06-

00083, 2006 WL 2074688, at *1 & n.1 (Tex. App.—Houston [14th Dist.] July 27,

2006, no pet.) (mem. op.)); see Wilson v. Avendano, No. 01-21-00631-CV, 2021 WL

5903920, at *1 (Tex. App.—Houston [1st Dist.] Dec. 14, 2021, no pet.) (mem. op.)

(“[A]n order denying a post-judgment motion does not exist separate from the

underlying, appealable judgment, and is not independently appealable.”). Thus, we

lack jurisdiction to consider appellant’s appeal of the trial court’s denial of his

motion for new trial.

The clerk’s record indicates that the appealable judgment in the underlying

case was the final judgment signed on April 28, 2023. “[T]he time for filing a notice

of appeal runs from the signing of the final judgment, not the subsequent denial of a

motion for new trial.” Morris v. Wells Fargo Bank, N.A., No. 01-19-00610-CV, 2019

2 WL 4677365, at *2 (Tex. App.—Houston [1st Dist.] Sept. 26, 2019, no pet.) (mem.

op.) (citing TEX. R. APP. P. 26.1). Even if the Court were to construe appellant’s

August 16, 2023 notice of appeal as an attempt to appeal the final judgment signed

on April 28, 2023, the notice of appeal was untimely filed 110 days after the

judgment. See TEX. R. APP. P. 26.1 (requiring notice of appeal to be filed within 30

days after judgment is signed or within 90 days after judgment is signed if party

timely files motion for new trial). Absent a timely filed notice of appeal, an appellate

court lacks jurisdiction over the appeal. See TEX. R. APP. P. 25.1(b); Gantt v. Gantt,

208 S.W.3d 27, 30 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (untimely

notice of appeal fails to invoke jurisdiction of appellate court and dismissal of appeal

required).

On July 18, 2024, this Court notified appellant that his appeal was subject to

dismissal unless he filed a written response within ten days demonstrating that this

Court has jurisdiction over the appeal. See TEX. R. APP. P. 42.3(a). Appellant did not

respond.

Accordingly, we dismiss the appeal for lack of jurisdiction. See TEX. R. APP.

P. 42.3(a), 43.2(f). Any pending motions are dismissed as moot.

PER CURIAM

Panel consists of Chief Justice Adams and Justices Kelly and Goodman.