Douglas, G. Lynn v. Progressive County Mutual Insurance Company and Audrey Philbert

• Court: Court of Appeals of Texas
• Decided: January 16, 2003
• Docket: 14-02-00495-CV
• Status: Published

Opinion

Dismissed and Opinion filed January 16, 2003

Dismissed and Opinion filed January 16, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00495-CV

G. LYNN DOUGLAS, Appellant

V.

PROGRESSIVE COUNTY MUTUAL INSURANCE CO. AND AUDREY PHILBERT, Appellees

On Appeal from the 55th District Court

Harris County, Texas

Trial Court Cause No. 02-28189

M E M O R A N D U M   O P I N I O N

This is an attempted appeal from an order denying a motion to recuse, signed May 9, 2002.  Because there is no order or judgment from which an appeal may be taken, we dismiss.

Appellant, G. Lynn Douglas, filed a motion to recuse the Honorable Jeffrey V. Brown.  In accordance with the Texas Rules of Civil Procedure, the matter was referred to the Honorable Olin Underwood for consideration.  See Tex. R. Civ. P. 18a.  On May 9, 2002, Judge Underwood denied appellant=s motion to recuse.  On May 13, 2002, appellant filed a notice of appeal.  In the notice, appellant specifically states she is appealing the order denying the motion to recuse.  See Tex. R. App. P. 25.1(d) (requiring notice of appeal to identify judgment or order being appealed). 

As a general rule, an appeal may be taken only from a final judgment.  Lehmann v. Har-Con Corp., 39 S.W.3d 191, 194 (2001); Mills v. Corvettes of Houston, Inc., 44 S.W.3d 197, 199 (Tex. App.CHouston [14th Dist.] 2001, no pet.).  A judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record, except as necessary to carry out the judgment.  Id.  An exception to the general rule is found in section 51.014(a) of the Texas Civil Practice and Remedies Code.  See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a) (Vernon Supp. 2002) (providing for appeals of certain interlocutory orders).  Section 51.014 is strictly construed, however, because it is a narrow exception to the general rule that only final judgments and orders are appealable.  Mills, 44 S.W.3d at 199.  An order  granting or denying a motion to recuse is not among the enumerated exceptions in section 51.014.  See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a) (Vernon Supp. 2002)  Thus, absent a final judgment, an order on a motion to recuse is not subject to appeal. 

On November 14, 2002, notification was transmitted to all parties of the Court=s intent to dismiss the appeal for want of jurisdiction.  See Tex. R. App. P. 42.3(a).  In the notice, we specifically stated that the record before the Court does not contain a final, appealable judgment or an appealable order.  We further stated that absent a final judgment, an order on a motion to recuse is not subject to appeal.  We stated that if supplementation of the record is necessary to demonstrate jurisdiction, the supplemental clerk=s record was to be filed on or before November 29, 2002.  No supplemental clerk=s record was filed; however, on December 2, 2002, appellant filed a response to our notice and a motion to retain.  Appellant=s response fails to demonstrate that this Court has jurisdiction to entertain the appeal.  Appellant does not argue that a final judgment disposing of all parties and claims has been entered or that she is attempting to appeal any order or judgment other than the order denying the motion to recuse. 

Because there is no final judgment and an interlocutory appeal from an order on a motion to recuse is not statutorily permitted, we lack jurisdiction.  Accordingly, the appeal is ordered dismissed.

/s/        John S. Anderson

Justice

Judgment rendered and Opinion filed January 16, 2003.

Panel consists of Justices Yates, Anderson, and Frost.