Opinion
No. 05-10-00074-CV
Opinion Filed March 26, 2010.
On Appeal from the 397th Judicial District Court, Grayson County, Texas, Trial Court Cause No. CV-09-1152.
Before Justices MORRIS, FITZGERALD, and FRANCIS.
MEMORANDUM OPINION
On January 15, 2010, appellant filed a notice of appeal from the trial court's November 10, 2009 order denying appellant's motion for partial summary judgment and the December 14, 2009 order sustaining appellee's "Special Exceptions to Plaintiff's First and Second Supplemental Pleadings." Appellant and appellee each filed responses to our letter raising a question of our jurisdiction over this interlocutory appeal. For the reasons set out below, we conclude we lack jurisdiction over this appeal.
Appellant also filed a motion to extend time to file her notice of appeal and a motion to stay the trial court proceedings pending disposition of this appeal.
Applicable Law
Appellate courts have jurisdiction over final judgments and such interlocutory orders as the legislature deems appealable. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Ruiz v. Ruiz, 946 S.W.2d 123, 124 (Tex. App.-El Paso 1997, no writ). Appellate jurisdiction is never presumed. Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545 (Tex. App.-Dallas 2009, no pet. h.) (op. on reh'g). Unless the record affirmatively shows the propriety of appellate jurisdiction, we must dismiss. Id.
Appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only if a statute specifically provides such jurisdiction. See Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998); Johnson v. Resendez, 993 S.W.2d 723, 728 (Tex. App.-Dallas 1999, pet. dism'd). We strictly construe statutes authorizing interlocutory appeals. Johnson, 993 S.W.2d at 728.
Analysis
In our letter requesting jurisdictional briefs, we noted that the trial court's December 14, 2009 order contained language stating "It is, further, ordered that plaintiffs may appeal this ruling by interlocutory appeal, or as otherwise authorized by Texas law." We further noted, however, that the order did not reflect the requirements of section 51.014(d) of the Texas Civil Practices and Remedies Code. See Tex. Civ. Prac. Rem. Code Ann. § 51.014(d) (Vernon 2008).
Appellant responded that regardless of whether the trial court's order reflected the requirements of section 51.014(d), it is clear from the record that appellant is entitled to an interlocutory appeal under that section. Appellant further asserts that appellee "agreed" to the order by not objecting to it. Finally, appellant states that she will also be filing a petition for writ of mandamus raising the issues presented herein.
Appellee responded that section 51.014(d) requires that the parties agree to the order granting an interlocutory appeal. Appellee asserts the order in this case is not an agreed order. Appellee further contends that its failure to "object" to the order or its agreement as to the "form" of the order in no way constituted an agreement to the interlocutory appeal.
Section 51.014(d) of the civil practices and remedies code conditions a permissive interlocutory appeal on three things: "(1) the parties agree that the order involves a controlling question of law as to which there is a substantial ground for difference of opinion; (2) an immediate appeal from the order may materially advance the ultimate termination of the litigation; and (3) the parties agree to the order." Tex. Civ. Prac. Rem. Code Ann. § 51.014(d) (emphasis added). We strictly construe statutes authorizing interlocutory appeals. Johnson, 993 S.W.2d at 728.
In this case, nothing in the record reflects that appellee agreed to an interlocutory appeal. Counsel for appellee stated that he did not believe the order was subject to interlocutory appeal. He further was willing to stipulate that appellant was not waiving the right to appeal the trial court's ruling. Because neither the trial court's December 14, 2009 nor the record show appellee agreed to the appeal, we conclude the requirements of section 51.014(d) are not satisfied.
Accordingly, we conclude we lack jurisdiction over this interlocutory appeal. We dismiss the appeal for want of jurisdiction.