Opinion
NO. 14-20-00104-CV
04-07-2020
JOE Y. ROGERS, III, Appellant v. SANDRA ROGERS MILLER, AS INDEPENDENT ADMINISTRATOR WITH WILL ANNEXED OF THE ESTATE OF JOE Y. ROGERS, JR., Appellee
On Appeal from County Court at Law #4 Williamson County, Texas
Trial Court Cause No. 17-0461-CP4A
ORDER
This is an interlocutory appeal. Appellant's notice of appeal states he is appealing: "Judge McMasters [sic] denial of Defendant [sic] Motion for Recusal and the then [sic] resulting in a further and continuing exercise of Jurisdiction in this case by signing an ORDER dated 21 November 19 denominated as ORDER DENYING DEFENDANT'S SPECIAL APPEARANCE AND DENYING DEFENDANT'S PLEA TO THE JURISDICTION " (emphasis in original). Appellee filed a motion to dismiss this appeal for lack of jurisdiction contending: (1) the trial court did not sign an order denying appellant's November 21, 2019 motion to recuse, so there is nothing to review; (2) the denial of a plea to the jurisdiction is not reviewable until the appeal from the final judgment, and (2) the denial of a special appearance is reviewable by interlocutory appeal, but the notice of appeal was late. The motion has been pending for more than ten days, and no response has been filed. Tex. R. App. P. 10.3(a).
Appellant filed a second notice of appeal concerning the January 17, 2020 Order Denying Defendant's "Motion to Recuse the Judge of this Court; Judge McMcasters." That notice of appeal resulted in appeal number 14-20-00194-CV in this court. This order does not apply to appeal number 14-20-00194-CV.
Appellee's motion also challenges the order that gave rise to appeal number 14-20-00194-CV on the ground that an order denying a motion to recuse is not reviewable until the appeal from the final judgment. We decline to consider that order in this case because it is the subject of a separate appeal.
Generally, appeals may be taken only from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Interlocutory orders may be appealed only if permitted by statute. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001). We consider our jurisdiction over each order in turn.
Denial of November 21 , 2019 motion to recuse. Contrary to appellee's assertion, the trial court did sign an order on November 22, 2019 denying appellant's motion to recuse. An order denying a motion to recuse may be reviewed on appeal from the final judgment. Tex. R. Civ. P. 18a(j)(1)(B). It is not reviewable by interlocutory appeal. In re Estate of Calkins, 580 S.W.3d 287, 295 (Tex. App.—Houston [1st Dist.] 2019, no pet.). We lack jurisdiction to review the order denying the motion to recuse in this interlocutory appeal.
Denial of plea to the jurisdiction. An order granting or denying a plea to the jurisdiction by a governmental unit, as defined in Tex. Civ. Prac. & Rem. Code § 101.001, is subject to interlocutory appeal. Tex. Civ. Prac. & Rem. Code § 51.014(a)(8). Appellant does not purport to be a governmental unit. An order denying a plea to the jurisdiction by an entity other than a governmental unit is not reviewable on interlocutory appeal. See Rosenberg Dev. Corp. v. Imperial Performing Arts, Inc., 571 S.W.3d 738, 747 (Tex. 2019). We lack jurisdiction to review the denial of appellant's plea to the jurisdiction.
Denial of special appearance. An order granting or denying a special appearance is subject to interlocutory appeal. Tex. Civ. Prac. & Rem. Code § 51.014(a)(7). Appeals from interlocutory orders are accelerated. Tex. R. App. P. 28.1(a). The notice of appeal in an accelerated appeal must be filed within 20 days after the order is signed. Tex. R. App. P. 26.1(b).
The notice of appeal regarding the special appearance was due December 11, 2019. See Tex. R. App. P. 26.1(b). Appellant, however, filed the notice of appeal on December 23, 2019, a date within 15 days of the due date for the notice of appeal. A motion to extend time is necessarily implied when the perfecting instrument is filed within 15 days of its due date. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Appellant did not file a motion to extend time to file the notice of appeal. While an extension may be implied, appellant is still obligated to come forward with a reasonable explanation to support the late filing. See Miller v. Greenpark Surgery Center Assocs., Ltd., 974 S.W.2d 805, 808 (Tex. App.—Houston [14th Dist.] 1998, no pet.).
Accordingly, we ORDER as follows:
1. Appellee's motion to dismiss for lack of jurisdiction is GRANTED as to the denial of the motion to recuse and the denial of the plea to the
jurisdiction and DENIED as to the denial of the special appearance.
2. Appellant shall file a motion to extend time to file the notice of appeal on or before April 17, 2020. See Tex. R. App. P. 26.3, 10.5(b). If appellant does not comply with this order, we will dismiss the appeal. See Tex. R. App. P. 42.3.
PER CURIAM Panel consists of Justices Christopher, Wise, and Zimmerer.