Opinion
NO. 03-15-00741-CV
02-03-2016
Charles N. Draper, Appellant v. Greg Guernsey, in his Official Capacity as Director of Planning and Development Watershed Protection Review Department; and City of Austin, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
NO. D-1-GN-13-000778, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDINGMEMORANDUM OPINION
This proceeding concerns the same land-use dispute that was the subject of our opinion and judgment in Cause No. 03-14-00265-CV. Following our ruling, Charles N. Draper, the plaintiff below, filed a second motion seeking summary judgment on his affirmative claims. The district court denied the motion by written order, and Draper, as before, has attempted to appeal that order. Urging that the order Draper now seeks to appeal is interlocutory and not among the types that the Legislature has granted us jurisdiction to review immediately, appellees have filed a motion to dismiss. Draper has filed a response in opposition to dismissal. Appellees are correct that our appellate jurisdiction does not extend to the order Draper currently challenges, and we must accordingly grant the motion and dismiss.
See Draper v. Guernsey, No. 03-14-00265-CV, 2015 WL 868991 (Tex. App.—Austin Feb. 25, 2015, no pet.) (mem. op.).
See id. at *1 n.3 (noting that Draper, in addition to challenging appealable interlocutory order dismissing certain of his claims under Tort Claim Act's election-of-remedies provision, had also sought "reversal of a second interlocutory order that denied him a summary-judgment motion on his claims," and explaining that "[w]e lack jurisdiction to award him that relief in the context of this appeal").
See id. To be precise, Draper filed both a "Notice of Appeal" and a subsequent "Petition for Permission to Appeal." The distinction ultimately has no significance here, for reasons that will soon become apparent.
As in his previous appeal, Draper is pro se. While the intricacies of appellate practice can be challenging even for lawyers, we must ultimately apply the same substantive and procedural standards to Draper as we do litigants represented by counsel. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 18485 (Tex. 1978). This is especially true where, as here, the issue in dispute implicates our jurisdiction, whether we have power to act.
This Court's appellate jurisdiction is generally limited to final judgments and only those interlocutory orders that the Texas Legislature has specifically authorized us to review. While Draper argues in part that the district court's order denying him summary judgment is a final judgment, it is not. "[W]hen there has not been a conventional trial on the merits, an order or judgment is not final for purposes of appeal [1] unless it actually disposes of every pending claim and party or [2] unless it clearly and unequivocally states that it finally disposes of all claims and all parties." The district court's order does neither. It states simply that "Plaintiff's No-Evidence Motion for Summary Judgment (construed by the Court as Plaintiff's Traditional Motion for Summary Judgment) is DENIED," and that ruling serves only to deny Draper favorable pretrial disposition of his claims, not to dispose of any claim or party. Draper's claims (or at least those that survived after Cause No. 03-14-00265-CV) still remain pending before the district court, where they await resolution through trial on the merits or other final disposition.
E.g., CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011) (citing Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992)).
Lehmann, 39 S.W.3d at 205.
Seemingly acknowledging as much, Draper has also repeatedly termed the challenged order "interlocutory" and purported to invoke one of the limited statutory grants of jurisdiction to review such orders immediately—the "permissive appeal" provisions of Texas Civil Practice and Remedies Code section 51.014. Subsection (f) of section 51.014 confers jurisdiction upon appellate courts to "accept an appeal permitted by Subsection (d) if the appealing party, not later than the 15th day after the date the trial court signs the order to be appealed, files in the court of appeals having appellate jurisdiction over the action an application for interlocutory appeal explaining why an appeal is warranted under Subsection (d)." Subsection (d), in turn, states:
Tex. Civ. Prac. & Rem. Code § 51.014(f).
On a party's motion or on its own initiative, a trial court in a civil action may, by written order, permit an appeal from an order that is not otherwise appealable if:When applying these and other statutes conferring appellate jurisdiction to review interlocutory orders, we do so "strictly . . . because they are a narrow exception to the general rule that interlocutory orders are not immediately appealable."
(1) the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion; and
(2) an immediate appeal from the order may materially advance the ultimate termination of the litigation.
Id. § 51.014(d).
CMH Homes, 340 S.W.3d at 447.
The effect of the two provisions in combination is that a trial court order under subsection (d) is a prerequisite to appellate court jurisdiction under subsection (f). And that prerequisite is lacking here—while Draper adamantly maintains that the interlocutory summary-judgment order presents an "controlling question of law" whose immediate appellate resolution would be decisive, he cannot demonstrate that he ever obtained the required order from the district court under subsection (d). Nor has the Legislature granted us authority merely to amend the district court's summary-judgment order to add the required findings, as Draper urges us to do; any such relief would be the province of the district court. Consequently, on the present record, we lack jurisdiction to consider Draper's appeal under subsection (f).
See, e.g., Shannon v. Hall, No. 03-13-00312-CV, 2013 WL 4516144, at *2 (Tex. App.—Austin Aug. 22, 2013, no pet.) (mem. op.) (holding that interlocutory order not appealable under section 51.014's permissive-appeal mechanism in absence of trial court order granting permission to appeal).
See Tex. R. Civ. P. 168.
Draper does not refer us to any other statute that could conceivably grant us jurisdiction to review the interlocutory summary-judgment order, nor is any apparent. Lacking any, our powers are limited to granting appellees' motion and dismissing Draper's appeal for want of subject-matter jurisdiction.
Cf. Tex. Civ. Prac. & Rem. Code § 51.014(a)(5) ("A person may appeal from an interlocutory order . . . that . . . denies a motion for summary judgment that is based on an assertion of immunity" by certain governmental officials), (6) (order denying summary-judgment motion asserting certain First Amendment rights in media context), (13) (order denying certain summary-judgment motions filed by electric utilities).
See Tex. R. App. P. 42.3(a). --------
/s/_________
Bob Pemberton, Justice Before Chief Justice Rose, Justices Pemberton and Bourland Dismissed for Want of Jurisdiction Filed: February 3, 2016