Steve Martinez D/B/A/ Gulf Coast Construction Services v. Robert Khami

• Court: Court of Appeals of Texas
• Decided: March 27, 2025
• Docket: 01-24-00908-CV
• Status: Published

Opinion

Opinion issued March 27, 2025

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-24-00908-CV ——————————— STEVE MARTINEZ D/B/A/ GULF COAST CONSTRUCTION SERVICES, Appellant V. ROBERT KHAMI, Appellee

On Appeal from 189th District Court Harris County, Texas Trial Court Case No. 2023-88048

MEMORANDUM OPINION

Appellant Steve Martinez doing business as Gulf Coast Construction Services

filed a notice of appeal from the trial court’s interlocutory order denying his

Amended Plea to the Jurisdiction and Motion to Dismiss. Appellee Robert Khami filed a Motion to Dismiss the appeal for lack of jurisdiction. Acknowledging this

Court lacks jurisdiction over his interlocutory appeal, Appellant requests that we

construe his appeal “as a request for mandamus relief.”

We grant Appellee’s motion and dismiss the appeal for lack of jurisdiction.

Discussion

“[C]ourts always have jurisdiction to determine their own jurisdiction.”

Heckman v. Williamson Cty., 369 S.W.3d 137, 146 n.14 (Tex. 2012) (internal

quotation marks omitted); see Royal Indep. Sch. Dist. v. Ragsdale, 273 S.W.3d 759,

763 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (holding jurisdiction is

fundamental in nature and cannot be ignored). Whether we have jurisdiction is a

question of law, which we review de novo. See Tex. A & M Univ. Sys. v. Koseoglu,

233 S.W.3d 835, 840 (Tex. 2007). A final judgment or other appealable

interlocutory order is a prerequisite to appellate jurisdiction. Jack M. Sanders

Family Ltd. P’ship v. Roger T. Fridholm Revocable, Living Tr., 434 S.W.3d 236,

240 (Tex. App.—Houston [1st Dist.] 2014, no pet.). If this is an appeal from an

interlocutory order over which we lack jurisdiction, we must dismiss the appeal.

Ragsdale, 273 S.W.3d at 763.

“We may, however, exercise our mandamus jurisdiction when a party

specifically requests mandamus treatment of [his] appeal, as in this case.” Silwany

v. JJLJ Operating, LLC, No. 14-24-00403-CV, 2024 WL 3579456, at *1 (Tex.

2 App.—Houston [14th Dist.] July 30, 2024, no pet.) (mem. op.) (citing CMH Homes

v. Perez, 340 S.W.3d 444, 454 (Tex. 2011) (holding that “appeal may properly be

considered as a petition for writ of mandamus, as [appellant] requested”)). In

exercising mandamus jurisdiction, we hold appellants to the same exacting standard

to which we hold all parties in original proceedings. Id. Mandamus relief is

appropriate only when relator establishes the trial court clearly abused its discretion

and relator lacks an adequate appellate remedy. In re AutoNation, Inc., 228 S.W.3d

663, 667 (Tex. 2007) (orig. proceeding); In re Prudential Ins. Co of America, 148

S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding).

Appellant appeals from the trial court’s order denying his Amended Plea to

the Jurisdiction and Motion to Dismiss. Appellee filed a Motion to Dismiss arguing

we lack jurisdiction over the appeal “because it is from an interlocutory order and

there is no statute allowing for the appeal.” In response, Appellant concedes this

Court lacks jurisdiction over his interlocutory appeal because “only a governmental

unit, as defined under TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3), is permitted

to file an appeal from interlocutory ruling on plea to jurisdiction.”1 He thus seeks

leave to amend the title of his notice of appeal, requesting we construe his appeal

“as a request for mandamus relief.”

1 TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8).

3 Appellant argues in his appellate brief that the trial court erred in denying his

Plea to the Jurisdiction and Motion to Dismiss because Appellee lacks standing to

assert his claims.2 Appellant, however, does not assert anywhere in his appellate

brief or in his motion for leave that the trial court abused its discretion or that he

lacks an adequate appellate remedy. While Appellant acknowledges in his motion

for leave that a relator must establish he lacks an adequate appellate remedy to secure

mandamus relief, he does not explain why he lacks an adequate appellate remedy

here. Appellant asserts only that he lacks an adequate appellate remedy because

there is “no option of interlocutory appeal.” But that is not the relevant inquiry. The

inquiry is whether Appellant will have an eventual remedy on appeal upon entry of

final judgment. If such a remedy lies and is adequate, mandamus relief is not

available. See Silwany, 2024 WL 3579456, at *1 (holding mandamus was not

available because appellant “would have an adequate remedy by way of an appeal

of the final judgment in the underlying matter”).

“Absent an extraordinary situation, mandamus will not issue to correct a trial

court’s denial of a plea to the jurisdiction, as an appeal will generally be an adequate

remedy.” In re Occidental W. Texas Overthrust, Inc., 626 S.W.3d 395, 399 (Tex.

2 We note that Appellant’s notice of appeal challenges the trial court’s order denying his Amended Plea to the Jurisdiction and Motion to Dismiss, signed on November 4, 2024, but the arguments in his appellate brief relate only to the trial court’s oral ruling on September 24, 2024 denying his original Plea to the Jurisdiction and Motion to Dismiss.

4 App.—El Paso 2021, no pet.) (citing In re Bay Area Citizens Against Lawsuit Abuse,

982 S.W.2d 371, 375 (Tex. 1998)). Thus, even were we to construe Appellant’s

appeal as a petition for writ of mandamus, Appellant has not demonstrated he lacks

an adequate remedy by appeal or that his appeal is an otherwise extraordinary

circumstance requiring mandamus relief. See Gruss v. Gallagher, 680 S.W.3d 642,

661-62 (Tex. App.—Houston [14th Dist.] 2023, no pet.) (citing TEX. R. APP. P.

52.3(h) (stating that “[t]he petition must contain a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the appendix or

record”)); In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d at 375

(denying mandamus relief for trial court’s denial of plea to jurisdiction because

relator failed to show it lacked adequate appellate remedy); see also In re Occidental

W. Texas Overthrust, Inc., 626 S.W.3d at 399 (same).

We grant Appellee’s Motion to Dismiss and dismiss the appeal for lack of

jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f). We dismiss any other pending

motions as moot.

PER CURIAM

Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.