NUMBER 13-13-00103-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG ____________________________________________________________
PETER E. PRATT JR., Appellant,
v.
JAMES WAYNE, Appellee. ____________________________________________________________
On appeal from the 267th District Court of Victoria County, Texas. ____________________________________________________________
MEMORANDUM OPINION Before Justices Rodriguez, Garza, and Perkes Memorandum Opinion Per Curiam
Appellant, Peter E. Pratt, Jr. attempted to perfect an appeal from a sanction order
and a show cause order issued in trial court cause number 11-5-71651-C in the 267th
Judicial District Court of Victoria, County, Texas. We dismiss the appeal for want of
jurisdiction. I. BACKGROUND
On February 19, 2013, appellant filed a notice of appeal regarding a show cause
order issued by the trial court on February 13, 2013. Upon review of the documents
before the Court, it appeared that there was no final, appealable judgment or other order
subject to appeal. On February 20, 2013, the Clerk of this Court notified appellant of this
defect so that steps could be taken to correct the defect, if it could be done. See TEX. R.
APP. P. 37.1, 42.3. Appellant was advised that, if the defect was not corrected within
ten days from the date of receipt of the notice, the appeal would be dismissed for want of
jurisdiction.
On February 25, 2013, appellee, James Wayne, filed a motion to dismiss the
appeal for lack of jurisdiction and for damages pursuant to Texas Rule of Appellate
Procedure 45. See id. R. 45. Appellee contends, inter alia, that the appeal is frivolous
and appellant is improperly using the automatic stay associated with this interlocutory
appeal to avoid sanctions and the show cause hearing.
Appellant thereafter filed a consolidated response to this Court’s directive and to
appellee’s motion, and appellee filed a reply thereto. Appellant contends that he is filing
an interlocutory appeal regarding the trial court’s “implicit” denial of his plea to the
jurisdiction through orders issued on January 22, 2013, sanctioning appellant, and again
on February 13, 2013 issuing a show cause order against appellant. Appellant thus
asserts that he is raising an interlocutory appeal pursuant to Texas Civil Practice and
Remedies Code sections 51.014(d) (allowing interlocutory appeal by permission),
51.014(a)(8) (allowing interlocutory appeal of order granting or denying a plea to the
jurisdiction by a governmental unit), and 101.001 (concerning governmental liability
2 claims under the Tort Claims Act). See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d)
(West Supp. 2011); § 51.014(a)(8) (West Supp. 2011); §§ 101.001-.109 (West 2011 &
Supp. 2011).
II. ANALYSIS
After examining and fully considering this matter, we conclude we lack jurisdiction
over this appeal. First, we address the substantive grounds asserted for jurisdiction over
the appeal. The record before the Court fails to reflect that the trial court granted
permission to appeal, so section 51.014(d) does not provide us with jurisdiction over this
appeal. See id. § 51.014(d). Moreover, the record before the Court fails to reflect that
this matter involves an appeal by a governmental unit under section 51.014(a)(8), or
otherwise implicates claims against the State under any section of the Tort Claims Act.
See id. §§ 51.014(a)(8); 101.001-.109. Appellant has failed to invoke any jurisdictional
basis for an interlocutory appeal
Second, appellant asserts that he is appealing an “implicit” ruling that denies his
plea to the jurisdiction as a governmental unit. In terms of appellate jurisdiction,
appellate courts only have jurisdiction to review final judgments and certain interlocutory
orders identified by statute. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.
2001). Our appellate jurisdiction over interlocutory appeals must be strictly construed as
a narrow exception to the general rule that only final judgments and orders are
appealable. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001).
Nevertheless, an appellate court may have jurisdiction over an interlocutory order which
does not expressly deny a plea to the jurisdiction if it implicitly denies the plea by
adjudicating the merits of a claim. See Thomas v. Long, 207 S.W.3d 334, 339–40 (Tex.
3 2006) (holding that trial court's order ruling on merits of declaratory judgment claim
constituted implicit denial of plea to jurisdiction and was appealable under section
51.014(a)(8)).
Appellant asserts that he is appealing the January 22, 2013 order sanctioning
appellant for failing to produce discovery and the February 13, 2013 order which directs
appellant to appear and show cause why he should not be adjudged in contempt of court.
These orders do not expressly or even implicitly concern the merits of the lawsuit or
jurisdiction, and accordingly, do not fall within the parameters of an interlocutory appeal
denying a plea to the jurisdiction. See City of Galveston v. Gray, 93 S.W.3d 587, 590
(Tex. App.—Houston 2002, pet. denied) (holding that order granting motion for
continuance and allowing discovery did not constitute implicit denial of plea to
jurisdiction); see also Tex. Dep't of Pub. Safety v. Salazar, No. 03-11-00206-CV, 2011
Tex. App. LEXIS 2921, at **1–3 (Tex. App.—Austin Apr. 19, 2011, no pet.) (mem. op. on
reh’g).
Third, appellant’s notice of appeal asserts that he is appealing the show cause
order of February 13, 2013; however, his briefing asserts that he is also appealing the
January 22, 2013 order as an “implicit” ruling on the plea to the jurisdiction. Appeals
from interlocutory orders, when allowed by statute, are accelerated appeals. TEX. R.
APP. P. 28.1. In order to perfect an accelerated appeal of an interlocutory order, the
party is required to file a notice of appeal "within 20 days after the judgment or order is
signed." Id. at R. 26.1(b). The filing of a motion for new trial, request for findings of fact
and conclusions of law, or any other post-judgment motion, except for a motion for
4 extension of time filed under Texas Rule of Appellate Procedure 26.3, "will not extend the
time to perfect an accelerated appeal." Id. at R. 26.3, 28.1(b).
In the instant case, appellant did not file his notice of appeal until February 19,
2013, well beyond the deadline for appealing the January 22, 2013 order, and did not file
a motion for extension of time. See City of Houston v. Estate of Jones, 388 S.W.3d 663
(Tex. 2012) (calculating the deadline to appeal an interlocutory order from an order
denying a plea to the jurisdiction rather than a second order denying a subsequent plea
when the second plea raised the same grounds as the original plea).
We are to construe the rules of appellate procedure reasonably and liberally so
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NUMBER 13-13-00103-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG ____________________________________________________________
PETER E. PRATT JR., Appellant,
v.
JAMES WAYNE, Appellee. ____________________________________________________________
On appeal from the 267th District Court of Victoria County, Texas. ____________________________________________________________
MEMORANDUM OPINION Before Justices Rodriguez, Garza, and Perkes Memorandum Opinion Per Curiam
Appellant, Peter E. Pratt, Jr. attempted to perfect an appeal from a sanction order
and a show cause order issued in trial court cause number 11-5-71651-C in the 267th
Judicial District Court of Victoria, County, Texas. We dismiss the appeal for want of
jurisdiction. I. BACKGROUND
On February 19, 2013, appellant filed a notice of appeal regarding a show cause
order issued by the trial court on February 13, 2013. Upon review of the documents
before the Court, it appeared that there was no final, appealable judgment or other order
subject to appeal. On February 20, 2013, the Clerk of this Court notified appellant of this
defect so that steps could be taken to correct the defect, if it could be done. See TEX. R.
APP. P. 37.1, 42.3. Appellant was advised that, if the defect was not corrected within
ten days from the date of receipt of the notice, the appeal would be dismissed for want of
jurisdiction.
On February 25, 2013, appellee, James Wayne, filed a motion to dismiss the
appeal for lack of jurisdiction and for damages pursuant to Texas Rule of Appellate
Procedure 45. See id. R. 45. Appellee contends, inter alia, that the appeal is frivolous
and appellant is improperly using the automatic stay associated with this interlocutory
appeal to avoid sanctions and the show cause hearing.
Appellant thereafter filed a consolidated response to this Court’s directive and to
appellee’s motion, and appellee filed a reply thereto. Appellant contends that he is filing
an interlocutory appeal regarding the trial court’s “implicit” denial of his plea to the
jurisdiction through orders issued on January 22, 2013, sanctioning appellant, and again
on February 13, 2013 issuing a show cause order against appellant. Appellant thus
asserts that he is raising an interlocutory appeal pursuant to Texas Civil Practice and
Remedies Code sections 51.014(d) (allowing interlocutory appeal by permission),
51.014(a)(8) (allowing interlocutory appeal of order granting or denying a plea to the
jurisdiction by a governmental unit), and 101.001 (concerning governmental liability
2 claims under the Tort Claims Act). See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d)
(West Supp. 2011); § 51.014(a)(8) (West Supp. 2011); §§ 101.001-.109 (West 2011 &
Supp. 2011).
II. ANALYSIS
After examining and fully considering this matter, we conclude we lack jurisdiction
over this appeal. First, we address the substantive grounds asserted for jurisdiction over
the appeal. The record before the Court fails to reflect that the trial court granted
permission to appeal, so section 51.014(d) does not provide us with jurisdiction over this
appeal. See id. § 51.014(d). Moreover, the record before the Court fails to reflect that
this matter involves an appeal by a governmental unit under section 51.014(a)(8), or
otherwise implicates claims against the State under any section of the Tort Claims Act.
See id. §§ 51.014(a)(8); 101.001-.109. Appellant has failed to invoke any jurisdictional
basis for an interlocutory appeal
Second, appellant asserts that he is appealing an “implicit” ruling that denies his
plea to the jurisdiction as a governmental unit. In terms of appellate jurisdiction,
appellate courts only have jurisdiction to review final judgments and certain interlocutory
orders identified by statute. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.
2001). Our appellate jurisdiction over interlocutory appeals must be strictly construed as
a narrow exception to the general rule that only final judgments and orders are
appealable. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001).
Nevertheless, an appellate court may have jurisdiction over an interlocutory order which
does not expressly deny a plea to the jurisdiction if it implicitly denies the plea by
adjudicating the merits of a claim. See Thomas v. Long, 207 S.W.3d 334, 339–40 (Tex.
3 2006) (holding that trial court's order ruling on merits of declaratory judgment claim
constituted implicit denial of plea to jurisdiction and was appealable under section
51.014(a)(8)).
Appellant asserts that he is appealing the January 22, 2013 order sanctioning
appellant for failing to produce discovery and the February 13, 2013 order which directs
appellant to appear and show cause why he should not be adjudged in contempt of court.
These orders do not expressly or even implicitly concern the merits of the lawsuit or
jurisdiction, and accordingly, do not fall within the parameters of an interlocutory appeal
denying a plea to the jurisdiction. See City of Galveston v. Gray, 93 S.W.3d 587, 590
(Tex. App.—Houston 2002, pet. denied) (holding that order granting motion for
continuance and allowing discovery did not constitute implicit denial of plea to
jurisdiction); see also Tex. Dep't of Pub. Safety v. Salazar, No. 03-11-00206-CV, 2011
Tex. App. LEXIS 2921, at **1–3 (Tex. App.—Austin Apr. 19, 2011, no pet.) (mem. op. on
reh’g).
Third, appellant’s notice of appeal asserts that he is appealing the show cause
order of February 13, 2013; however, his briefing asserts that he is also appealing the
January 22, 2013 order as an “implicit” ruling on the plea to the jurisdiction. Appeals
from interlocutory orders, when allowed by statute, are accelerated appeals. TEX. R.
APP. P. 28.1. In order to perfect an accelerated appeal of an interlocutory order, the
party is required to file a notice of appeal "within 20 days after the judgment or order is
signed." Id. at R. 26.1(b). The filing of a motion for new trial, request for findings of fact
and conclusions of law, or any other post-judgment motion, except for a motion for
4 extension of time filed under Texas Rule of Appellate Procedure 26.3, "will not extend the
time to perfect an accelerated appeal." Id. at R. 26.3, 28.1(b).
In the instant case, appellant did not file his notice of appeal until February 19,
2013, well beyond the deadline for appealing the January 22, 2013 order, and did not file
a motion for extension of time. See City of Houston v. Estate of Jones, 388 S.W.3d 663
(Tex. 2012) (calculating the deadline to appeal an interlocutory order from an order
denying a plea to the jurisdiction rather than a second order denying a subsequent plea
when the second plea raised the same grounds as the original plea).
We are to construe the rules of appellate procedure reasonably and liberally so
that the right to appeal is not lost by imposing requirements not absolutely necessary to
effectuate the purpose of a rule. See In re R.D., 304 S.W.3d 368, 370 (Tex. 2010);
Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex. 1997). Nevertheless, we are
prohibited from enlarging the scope of our jurisdiction by enlarging the time for perfecting
an appeal in a civil case in a manner not provided for by rule. See TEX. R. APP. P. 2; see
also Schwerin v. Nueces County Juvenile Bd., No. 13-10-00451-CV, 2012 Tex. App.
LEXIS 4381,at **7–8 (Tex. App.—Corpus Christi May 31, 2012, no pet.) (mem. op.).
Absent a timely filed notice of appeal from a final judgment or recognized interlocutory
order, we do not have jurisdiction over the appeal. In re K.A.F., 160 S.W.3d 923, 927
(Tex. 2005); see Lehmann, 39 S.W.3d at 195.
III. MOTION FOR SANCTIONS
We next address appellee’s motion for sanctions against appellant. Appellee
asserts that this appeal is fraught with misrepresentations and is frivolous. We have
carefully examined these allegations and consider the matters alleged to be of some
5 concern. Nevertheless, based on our review of the pleadings and record, we deny
appellee’s request for sanctions. We are confident that the trial court will take any steps
deemed necessary to ensure that the parties and their counsel strictly comply with their
ethical and professional obligations in further proceedings below.
IV. CONCLUSION
The Court, having considered the documents on file and the related briefing, is of
the opinion that the appeal should be dismissed for want of jurisdiction. Accordingly,
appellee’s motion to dismiss the appeal and for damages is granted in part and denied in
part. The motion is granted insofar as the appeal is dismissed for want of jurisdiction.
The motion is denied with regard to the requested sanctions. The appeal is dismissed
for want of jurisdiction. See TEX. R. APP. P. 42.3(a),(c).
PER CURIAM
Delivered and filed the 21st day of March, 2013.