Raffaele M. Pandozy v. Mary Ann Beaty

• Court: Court of Appeals of Texas
• Decided: March 14, 2008
• Docket: 06-08-00023-CV
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-08-00023-CV ______________________________

RAFFAELE M. PANDOZY, Appellant

V.

MARY ANN BEATY, Appellee

On Appeal from the 101st Judicial District Court Dallas County, Texas Trial Court No. DC-03-05712-E

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley MEMORANDUM OPINION

Raffaele M. Pandozy has filed an appeal that states it is from the issuance of five different

orders in connection with his lawsuit against his former wife's attorney. We quote from his notice

of appeal below. It states that he is appealing from:

1. Order Holding Respondent [Pandozy] in Contempt and for Commitment to County Jail, signed on July 23, 2007. 2. Order of Attachment, signed on July 17, 2007 3. Turnover Order, signed on July 17, 2007 4. Order Declaring 'Raffaele M. Pandozy a Vexatious Litigant, signed on July 17, 2007. 5. Order Denying Motion to Sever Judgment of December 4, 2003, signed on August 28, 2007.

The judgment of dismissal of the underlying action was signed on December 4, 2003. This

notice of appeal was filed four years later, on October 15, 2007. As in any case, the first question

is whether we have jurisdiction over the appeal.

Generally, only final decisions of trial courts are appealable. Lehmann v. Har-Con Corp.,

39 S.W.3d 191, 195 (Tex. 2001); Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex. 1985); see TEX . CIV .

PRAC. & REM . CODE ANN . § 51.012 (Vernon 1997) (final judgment of district and county courts).

Some appeals from particular types of interlocutory orders have also been authorized by the

Legislature. See, e.g., TEX . CIV . PRAC. & REM . CODE ANN . § 51.014 (Vernon Supp. 2007).

Therefore, appeals can generally be taken only from final judgments and appealable interlocutory

orders. Lehmann, 39 S.W.3d at 195. Generally, if an order is not either a final judgment, or one

from which the Legislature has authorized appeal, we have no authority to review the court's ruling.

2 In this case, there are two separate problems. The first involves the appellate timetable and

the timeliness of any attempted appeal, either from the judgment or from later orders, while the

second involves the question of whether any of the 2007 orders are individually appealable.

It is clear that if this is an attempt to appeal from the 2003 judgment, it is untimely brought,

and we may not address it.1 The notice of appeal also refers to several separate orders within its

body, and reading it liberally, we will also look to see whether any appeal from these orders is

properly within our jurisdiction to consider. These are all orders entered post-judgment in the

underlying proceeding.

1) The Order of Contempt, Signed July 23, 2007

On August 31, 2007, Pandozy filed a request seeking the entry of findings of fact and

conclusions of law on an August 22 judgment. There is no August 22 judgment. However, the

request goes on to specifically seek findings on Pandozy's motion to sever the December 4, 2003,

judgment, motion to set aside the judgment for contempt, and his motion for a protective order

against production, and to quash depositions. The request was not filed within twenty days of the

date on which the order of contempt was signed, and, thus, an appeal from that order is not timely.2

However, regardless of timeliness, in Texas there is no appeal from an order holding a person

in contempt that involves jail time, as does this one. Ex parte Williams, 690 S.W.2d 243 n.1 (Tex.

1 TEX . R. APP. P. 26.1. 2 See TEX . R. APP . P. 26.1(a)(4).

3 1985); Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex. 1967); Saenz v. Saenz, 756 S.W.2d 93, 95

(Tex. App.—San Antonio 1988, no writ). Relief is available only through an application for writ

of habeas corpus. Grimes v. Grimes, 706 S.W.2d 340, 343 (Tex. App.—San Antonio 1986, writ

dism'd) (citing Wagner v. Warnash, 156 Tex. 334, 295 S.W.2d 890, 893 (1956)). Contempt orders

that do not involve confinement may be reviewed only through mandamus. In re Long, 984 S.W.2d

623, 625 (Tex. 1999) (orig. proceeding); Tracy v. Tracy, 219 S.W.3d 527, 530 (Tex. App.—Dallas

2007, no pet.).

For either of these alternative reasons, no appeal from the 2007 contempt order can be

properly considered by this Court.

2) Order of Attachment [Directing that he be brought before the court—Pandozy failed to appear], Signed on July 17, 2007

Pandozy's August 31, 2007, request for findings of fact does not reference this order in any

respect. Thus, it could not serve to extend the appellate timetable, and even if the order was one that

was appealable, the notice of appeal was filed nearly ninety days after the order was signed, and thus

would clearly be untimely.3 The untimely filed notice of appeal could thus not serve to invoke the

jurisdiction of this Court.

3 See TEX . R. APP . P. 26.1.

4 3) Turnover Order, Signed July 17, 2007

Pandozy's August 31, 2007, request for findings of fact does not reference the turnover order

in any respect, and did not serve to extend the appellate timetable for that order.4 The notice of

appeal was filed nearly ninety days after the turnover order was signed, and thus, under any

combination of circumstances, was untimely. Therefore, we also lack jurisdiction over this portion

of Pandozy's appeal. Even had the notice of appeal been timely filed, Pandozy states in his brief that

he paid the sums due under the judgment that were the basis for the turnover order. Accordingly,

the issue of its correctness is now moot. See Marshall v. Housing Auth. of the City of San Antonio,

198 S.W.3d 782, 787 (Tex. 2006).

4) Order Declaring Pandozy "Vexatious Litigant," Signed July 17, 2007

Yet again, the request for findings of fact does not seek any findings concerning the order

dated July 17, 2007, nor does it state that it is a request for such findings in any regard. Assuming

that it was a separate, appealable order, the time for filing a notice of appeal expired on August 18,

2007.5 The notice of appeal was untimely, and we do not have jurisdiction over the appeal.

4 As a general rule, turnover orders are final, appealable orders. See Burns v. Miller, Hiersche, Martens & Hayward, P.C., 909 S.W.2d 505, 506 (Tex. 1995); In re Hamel, 180 S.W.3d 226, 229 (Tex. App.—San Antonio 2005, orig. proceeding). 5 TEX . R. APP. P. 26.1.

5 5) Order Denying Motion to Sever Judgment of December 4, 2003, Signed August 28, 2007

Pandozy's request for findings of fact does not refer to this order in any respect. Thus, even

were this order appealable, any notice of appeal was required to be filed no later than thirty days after

that date: September 28, 2007.6 The notice of appeal was filed on October 15. The notice of appeal

was untimely and was also not filed within the potential grace period for late filing.

We have no jurisdiction over any aspect of this attempted appeal.

We dismiss the appeal for want of jurisdiction.

Bailey C. Moseley Justice

Date Submitted: March 13, 2008 Date Decided: March 14, 2008

6 TEX . R. APP. P. 26.1.