In the Estate of Eloisa M. Martinez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 29, 2023
• Docket: 04-22-00795-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-22-00795-CV

IN THE ESTATE of Eloisa M. MARTINEZ, Deceased

From the Probate Court No. 1, Bexar County, Texas Trial Court No. 2020PC3191 Honorable Oscar J. Kazen, Judge Presiding

PER CURIAM

Sitting: Rebeca C. Martinez, Chief Justice Liza A. Rodriguez, Justice Lori I. Valenzuela, Justice

Delivered and Filed: March 29, 2023

DISMISSED FOR LACK OF JURISDICTION

Appellant attempts to appeal from an order denying his motion to set aside judgment in a

probate matter. 1 We dismiss for lack of jurisdiction.

“Unless a statute authorizes an interlocutory appeal, appellate courts generally only have

jurisdiction over final judgments.” CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011). An

order denying a motion to set aside judgment is not a final judgment and is not independently

appealable. Macklin v. Saia Motor Freight Lines, Inc., No. 06-12-00038-CV, 2012 WL 1155141,

at *1 (Tex. App.—Texarkana Apr. 6, 2012, no pet.); see Cornwell v. Cornwell, No. 02-17-00105-

CV, 2017 WL 6759031, at *1 (Tex. App.—Fort Worth Dec. 28, 2017, no pet.) (“No appeal from

Appellant’s amended notice of appeal states he is appealing from an order denying his motion to set aside judgment, 1

which was signed on October 20, 2022. 04-22-00795-CV

an order denying a motion for new trial exists separately from an appeal of the underlying

judgment.”). Accordingly, any appeal must be taken from the judgment, not from the refusal to set

aside the judgment. See Macklin, 2012 WL 1155141, at *1 (dismissing appeal for lack of

jurisdiction because the notice of appeal was untimely when appellate deadline was calculated

from the date the judgment became final by severance).

“Probate proceedings are an exception to the one final judgment rule; in such cases,

multiple judgments final for purposes of appeal can be rendered on certain discrete issues.” De

Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006). Appellant’s motion to set aside judgment

asked the probate court to set aside multiple judgments, each of which was a final judgment for

purposes of appeal. See In re Estate of Singleton, No. 06-17-00063-CV, 2017 WL 4171593, at *2

(Tex. App.—Texarkana Sept. 21, 2017, no pet.) (“The appointment of an administrator of a

decedent’s estate has consistently been declared final and appealable.”); TEX. EST. CODE §

202.202(a) (“The judgment in a proceeding to declare heirship is a final judgment.”); TEX. EST.

CODE § 356.556(c) (stating that an order approving sale of real property “has the effect of a final

judgment.”). The most recent judgment appellant sought to set aside—a decree approving sale of

real property—was signed on March 8, 2022. The other judgments he sought to set aside were

signed before that date. However, appellant did not file his notice of appeal until November 22,

2022, which was more than eight months after any of the judgments in question were signed. Thus,

appellant’s notice of appeal was untimely. See TEX. R. APP. P. 26.1 (providing that a notice of

appeal must generally be filed within thirty days after the judgment is signed).

“A timely notice of appeal is necessary to invoke this court’s jurisdiction.” Interest of

L.R.S., No. 04-20-00507-CV, 2020 WL 7365444, at *1 (Tex. App.—San Antonio Dec. 16, 2020,

no pet.). In the absence of a timely notice of appeal, we have no option but to dismiss this appeal

for lack of jurisdiction. See id. We ordered appellant to show cause why this appeal should not be

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dismissed for lack of jurisdiction, but he failed to file a response. Accordingly, this appeal is

dismissed for lack of jurisdiction.

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