Opinion
03-23-00744-CV
02-15-2024
Dale Scott Harris, Appellant v. Loose Cannon Industries, LLC; and Inez Y. Escamilla, Appellees
FROM THE 335TH DISTRICT COURT OF BASTROP COUNTY NO. 2391-335, THE HONORABLE REVA TOWSLEE-CORBETT, JUDGE PRESIDING
Before Justices Baker, Triana, and Kelly
MEMORANDUM OPINION
Thomas J. Baker, Justice
Dale Scott Harris, appearing pro se, requests permission to bring a permissive appeal of an interlocutory order pursuant to section 51.014(d) of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code § 51.014(d) (trial court may permit appeal from otherwise unappealable order under certain prescribed circumstances); see also Tex. R. App. P. 28.3(a) (requiring party seeking to pursue permissive appeal of interlocutory order to petition court of appeals for permission to appeal). We will deny the request and dismiss the appeal for lack of jurisdiction.
BACKGROUND
Harris sued Loose Cannon Industries, LLC, and Inez Y. Escamilla (collectively, "Loose Cannon"). Loose Cannon filed special exceptions to Harris's pleading. See Tex. R. Civ. P. 91. After a hearing, the trial court signed an order sustaining a number of Loose Cannon's special exceptions and ordering Harris to replead. Harris then filed with the trial court a "Motion to Allow Interlocular [sic] Appeal" in which he asserted that the trial court's order was inconsistent with the arguments made at the hearing and that the order granted relief in excess of that requested by Loose Cannon. Specifically, Harris complained of language in the order stating that certain allegations contained in Harris's petition that he maintains supported his claim that Loose Cannon had violated deed restrictions, "are hereby stricken from the record." Harris stated that Loose Cannon never requested that his cause of action based on these allegations be "stricken as a cause of action" and that the order, drafted by Loose Cannon, achieved this result despite Loose Cannon's never having requested that relief and despite Harris's understanding that the trial court had, at the hearing, simply ordered him to replead his causes of action with more specificity. Harris requested that the trial court issue a revised order "rescinding the portion striking Deed Restrictions as a cause of action" and replacing it with an order for Harris to "replead on Deed Restrictions with additional detail." In the alternative, Harris requested that the trial court "grant a certificate to appeal so that he may seek reversal of that portion of the order as allowed under rule 168 of the Texas Rules of Civil Procedure." See Tex. R. Civ. P. 168 ("On a party's motion or on its own initiative, a trial court may permit an appeal from an interlocutory order that is not otherwise appealable.").
The clerk's record does not include a copy of the original petition, but a review of that document is not necessary for disposition of this appeal.
The clerk of the trial court filed Harris's "Motion for Interlocular [sic] Appeal" with this Court, apparently considering Harris's motion filed in the trial court as a notice of appeal. See Tex.R.App.P. 25.1 ("An appeal is perfected when a written notice of appeal is filed with the trial court clerk."). The record does not contain a trial court order disposing of
Harris's motion requesting that the trial court either amend its order or sign an order permitting him to appeal the interlocutory order on Loose Cannon's special exceptions.
DISCUSSION
Civil practice and remedies code section 51.014(d) provides that:
[A] trial court may, by written order, permit an appeal from an order that is not otherwise appealable if: (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.Tex. Civ. Prac. & Rem. Code § 51.014(d). Rule 168 of the rules of civil procedure, which implements section 51.104(d), provides:
On a party's motion or on its own initiative, a trial court may permit an appeal from an interlocutory order that is not otherwise appealable, as provided by statute. Permission must be stated in the order in order to be appealed. An order previously issued may be amended to include such permission. The permission must identify the controlling question of law as to which there is a substantial ground for difference of opinion, and must state why an immediate appeal may materially advance the ultimate termination of the litigation.Tex. R. Civ. P. 168.
In the present case, although Harris requested that the trial court amend its order to include permission to appeal from its order on Loose Cannon's special exceptions, the court has not done so. It appears from the record that the trial court has yet to rule on Harris's "Motion for Interlocular [sic] Appeal" at all. Because there is no trial court order granting Harris permission to appeal, we deny the request to appeal the trial court's interlocutory order on Loose Cannon's special exceptions.
CONCLUSION
For the reasons stated herein, we deny the request for permission to appeal the trial court's interlocutory order. Because a notice of appeal was filed in this cause, thereby invoking this Court's jurisdiction, see Tex. R. App. P. 25.1(b), we dismiss this appeal for lack of jurisdiction.
Dismissed for Want of Jurisdiction