Michelin North America, Inc. v. Moises Gallegos

• Court: Court of Appeals of Texas
• Decided: November 21, 2017
• Docket: 05-17-00617-CV
• Status: Published

Opinion

Dismissed and Opinion Filed November 21, 2017

In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-00617-CV

MICHELIN NORTH AMERICA, INC., Appellant V. MOISES GALLEGOS, INDIVIDUALLY AND AS HEIR AND AS BYSTANDER AND AS STATUTORY BENEFICIARY OF HIS MOTHER, MARIA LUISA GALLEGOS, DECEASED, AND AS REPRESENTATIVE OF THE ESTATE OF MARIA LUISA GALLEGOS, DECEASED; THE ESTATE OF MARIA LUISA GALLEGOS, DECEASED; CLAUDIO GALLEGOS AS HEIR AND AS STATUTORY BENFICIARY OF HIS MOTHER, MARIA LUISA GALLEGOS; ROSA ISELA RAMIREZ AS HEIR AND AS STATUTORY BENEFICIARY OF HER MOTHER, MARIA LUISA GALLEGOS; NORA ELIA GALLEGOS AS HEIR AND AS STATUTORY BENEFICIARY OF HER MOTHER, MARIA LUISA GALLEGOS; JUAN JOSE GALLEGOS AS HEIR AND AS STATUTORY BENEFICIARY OF HIS MOTHER, MARIA LUISA GALLEGOS; LEYDI ELENA GALLEGOS AS HEIR AND AS STATUTORY BENEFICIARY OF HER MOTHER, MARIA LUISA GALLEGOS; AND SILVIA GALLEGOS AS HEIR AND AS STATUTORY BENEFICIARY OF HER MOTHER, MARIA LUISA GALLEGOS, Appellees

On Appeal from the 192nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-05478

MEMORANDUM OPINION Before Chief Justice Wright, Justice Francis, and Justice Stoddart Opinion by Justice Stoddart This is an appeal from an amended order denying appellant’s special appearance. The

original order was signed November 9, 2016 and was not appealed. The amended order

followed appellant’s “motion to amend order and for reconsideration” and was signed May 18,

2017. It was appealed June 6, 2017, within twenty days from when it was signed. Although an appeal from an order denying a special appearance must be filed within

twenty days of the signing of the order, appellees have moved to dismiss the appeal as untimely.

See Digges v. Knowledge Alliance, Inc., 176 S.W.3d 463, 463 (Tex. App.—Houston [1st Dist.]

2004, no pet.) (op. on reh’g) (per curiam). Appellees assert the notice of appeal should have

been filed within twenty days of the date the original order was signed, and because it was not,

this Court lacks jurisdiction. See Brashear v. Victoria Gardens of McKinney, L.L.C., 302

S.W.3d 542, 545 (Tex. App.—Dallas 2009, no pet.) (op. on reh’g) (timely filing of notice of

appeal is jurisdictional).

An order denying a special appearance is an interlocutory order made appealable by

statute. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(7) (West Supp. 2016). Because

statutes authorizing interlocutory appeals are a narrow exception to the general rule that

interlocutory orders are not immediately appealable, they are narrowly construed. See City of

Houston v. Estate of Jones, 388 S.W.3d 663, 666 (Tex. 2012) (per curiam). Their purpose is to

increase efficiency of the judicial process and, as such, they generally do not allow for an

immediate appeal from an order denying a motion to reconsider an appealable interlocutory

order. See id. at 667 (“[a]llowing interlocutory appeals whenever a trial court refuses to change

its mind . . . would invite successive appeals and undermine the statute’s purpose of promoting

judicial economy.”) (quoting Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 356 (Tex.

2001)). However, when the motion to reconsider an appealable interlocutory order raises a new

ground, an order denying the motion is independently and immediately appealable. See id.; see

also City of Magnolia 4A Econ. Dev. Corp v. Smedley, No. 16-0718, 2017 WL 4848580 *3-5

(Tex. Oct. 27, 2017) (per curiam).

The record here reflects the issue in the special appearance was whether the trial court

could exercise specific jurisdiction over appellant. See Michiana Easy Livin’ Country, Inc. v.

–2– Holten, 168 S.W.3d 777, 794-95 (Tex. 2005). Appellant’s motion to amend and reconsider did

not present any new arguments. Instead, it cited to decisions issued after the original order was

signed, none of which changed the state of the law regarding specific jurisdiction.

Because the motion to amend and reconsider presented no new argument, we conclude

the amended order denying appellant’s special appearance was not independently appealable and

agree with appellees that appellant should have filed its notice of appeal within twenty days of

the signing of the original order. Accordingly, we grant appellees’ motion and dismiss the

appeal. See TEX. R. APP. P. 42.3(a).

170617F.P05 /Craig Stoddart/ CRAIG STODDART JUSTICE

–3– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

MICHELIN NORTH AMERICA, INC., On Appeal from the 192nd Judicial District Appellant Court, Dallas County, Texas Trial Court Cause No. DC-15-05478. No. 05-17-00617-CV V. Opinion delivered by Justice Stoddart. Chief Justice Wright and Justice Francis MOISES GALLEGOS, INDIVIDUALLY participating. AND AS HEIR AND AS BYSTANDER AND AS STATUTORY BENEFICIARY OF HIS MOTHER, MARIA LUISA GALLEGOS, DECEASED, AND AS REPRESENTATIVE OF THE ESTATE OF MARIA LUISA GALLEGOS, DECEASED; THE ESTATE OF MARIA LUISA GALLEGOS, DECEASED; CLAUDIO GALLEGOS AS HEIR AND AS STATUTORY BENFICIARY OF HIS MOTHER, MARIA LUISA GALLEGOS; ROSA ISELA RAMIREZ AS HEIR AND AS STATUTORY BENEFICIARY OF HER MOTHER, MARIA LUISA GALLEGOS; NORA ELIA GALLEGOS AS HEIR AND AS STATUTORY BENEFICIARY OF HER MOTHER, MARIA LUISA GALLEGOS; JUAN JOSE GALLEGOS AS HEIR AND AS STATUTORY BENEFICIARY OF HIS MOTHER, MARIA LUISA GALLEGOS; LEYDI ELENA GALLEGOS AS HEIR AND AS STATUTORY BENEFICIARY OF HER MOTHER, MARIA LUISA GALLEGOS; AND SILVIA GALLEGOS AS HEIR AND AS STATUTORY BENEFICIARY OF HER MOTHER, MARIA LUISA GALLEGOS, Appellees

–4– In accordance with this Court’s opinion of this date, we DISMISS the appeal.

We ORDER appellees Moises Gallegos, Individually and as Heir and as Bystander and as Statutory Beneficiary of His Mother, Maria Luisa Gallegos, Deceased, and as Representative of the Estate of Maria Luisa Gallegos, Deceased; The Estate of Maria Luisa Gallegos, Deceased; Claudio Gallegos as Heir and as Statutory Beneficiary of His Mother, Maria Luisa Gallegos; Rosa Isela Ramirez as Heir and as Statutory Beneficiary of Her Mother, Maria Luisa Gallegos; Nora Elia Gallegos as Heir and as Statutory Beneficiary of Her Mother, Maria Luisa Gallegos; Juan Jose Gallegos as Heir and as Statutory Beneficiary of His Mother, Maria Luisa Gallegos; Leydi Elena Gallegos as Heir and as Statutory Beneficiary of Her Mother, Maria Luisa Gallegos; and Silvia Gallegos as Heir and as Statutory Beneficiary of Her Mother, Maria Luisa Gallegos recover their costs of this appeal from appellant Michelin North America, Inc.

Judgment entered this 21st day of November, 2017.

–5–