Laszlo Herczeg v. City of Austin

• Court: Court of Appeals of Texas
• Decided: February 2, 2024
• Docket: 03-23-00754-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00754-CV

Laszlo Herczeg, Appellant

v.

City of Austin, Appellee

FROM COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY NO. C-1-CV-20-003717, THE HONORABLE TODD T. WONG, JUDGE PRESIDING

MEMORANDUM OPINION

Laszlo Herczeg filed a notice of appeal on November 6, 2023, attempting to

appeal from the trial court’s scheduling order signed on April 7, 2023. On January 12, 2024, this

Court requested a response from appellant by January 22, 2024, explaining how this Court may

exercise jurisdiction over this appeal because it appeared that appellant was attempting to appeal

from a non-appealable interlocutory order and that his notice of appeal was untimely. This Court

informed appellant that his appeal may be dismissed for want of jurisdiction unless he timely

responded and demonstrated jurisdiction.

Appellant timely responded, contending that this Court has jurisdiction over the

appeal pursuant to Texas Civil Practice and Remedies Code Section 51.014(7) because he stated

on the record at a March 21, 2022 hearing on appellee’s motion to substitute counsel that “this

is a special appearance.” He further contends that such “special appearance” was “denied by operation of law [on November 7, 2023] because of the court’s action to proceed with [a] pre-

trial” conference on that date. However, the clerk’s record does not contain a special appearance

filed by appellant or a signed order by the trial court ruling on a special appearance, and the

clerk’s record reflects that appellant filed an original answer to the appellee’s lawsuit on

August 14, 2020, without making it subject to a special appearance or otherwise objecting to the

trial court’s personal jurisdiction over him. Cf. Tex. R. Civ. P. 120a (allowing party to specially

appear for limited purpose of challenging personal jurisdiction and providing that such “special

appearance shall be made by sworn motion filed prior to motion to transfer venue or any other

plea, pleading or motion”); Tex. Civ. Prac. & Rem. Code § 51.014(7) (authorizing interlocutory

appeal from trial court’s order granting or denying special appearance of defendant under Texas

Rule of Civil Procedure 120a); see also Tex. R. Civ. P. 121 (“An answer shall constitute an

appearance of the defendant.”). Thus, there is no special appearance and no ruling thereon for

this Court to review.

Furthermore, to the extent that appellant is attempting to appeal from the

scheduling order, such orders are non-appealable, interlocutory orders over which this Court has

no jurisdiction to review. Cf. Tex. Civ. Prac. & Rem. Code § 51.014 (providing for appealable

interlocutory orders); Scripps NP Operating, LLC v. Carter, 573 S.W.3d 781, 788 (Tex. 2019)

(noting that appellate courts have jurisdiction over appeals from final judgments and certain

interlocutory orders made appealable by statute). Moreover, even if scheduling orders were

subject to review by interlocutory appeal, Herczeg’s notice of appeal—filed more than six

months after the signed scheduling order—is untimely. See Tex. R. App. P. 26.1(a), (b); see also

Tex. R. App. P. 25.1(b) (appeal is perfected when written notice of appeal is filed); Texas Ent.

2 Ass’n v. Combs, 431 S.W.3d 790, 796 (Tex. App.—Austin 2014, pet. denied) (timely filing of

notice of appeal is necessary to invoke appellate court’s jurisdiction).

We therefore lack jurisdiction over this appeal and accordingly dismiss the appeal

for want of jurisdiction. See Tex. R. App. P. 42.3(a).

__________________________________________ Thomas J. Baker, Justice

Before Justices Baker, Triana, and Kelly

Dismissed for Want of Jurisdiction

Filed: February 2, 2024