Opinion
NO. 03-17-00293-CV
08-18-2017
Billie O. Stone d/b/a Stobil Enterprise, Appellant v. Edward F. Reyes and Bryant Houston, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. D-1-GN-16-002261 , HONORABLE TIM SULAK, JUDGE PRESIDING MEMORANDUM OPINION
Appellant Billie O. Stone d/b/a Stobil Enterprise, acting pro se, filed a notice of appeal from the underlying cause challenging only an order denying his motion to set aside a writ of execution. See Reyes v. Stone, 633 Fed. Appx. 256, 257 (5th Cir. 2016), cert. denied, 137 S. Ct. 568 (2016).
However, the order on Stone's motion to set aside the writ of execution is not appealable and without a final judgment or otherwise appealable order, we may not exercise appellate jurisdiction. See Tex. Civ. Prac. & Rem. Code § 51.014; Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); see also Schultz v. Fifth Judicial Dist. Court of Appeals, 810 S.W.2d 738, 740 (Tex. 1991) (noting that "usual writs and orders to aid in execution to collect a final money judgment are not, in general, appealable orders") abrogated on other grounds by In re Sheshtawy, 154 S.W.3d 114 (Tex. 2004); Bank One, N.A. v. J.D.C. Recovery, Inc., No. 03-06-00012-CV, 2006 Tex. App. LEXIS 9151, at *3 (Tex. App.—Austin Sept. 22, 2006, no pet.) (mem. op.) (dismissing appeal from order distributing funds and impliedly denying motion to stay execution because "[w]rits of execution and orders incident to writs of execution are not reviewable by appeal"). This Court requested that Stone file a written response demonstrating this Court's jurisdiction over this appeal. The response that Stone filed has not done so.
In his response, Stone contends that this appeal, in addition to challenging the order denying his motion to set aside a writ of execution, is also an appeal from the order denying his motion to dismiss a foreign judgment. However, the record reflects that the district court's order denying Stone's motion to dismiss foreign judgment was signed on January 30, 2017. That order was not appealed, and the time to file an appeal from that order has expired. See Tex. R. App. P. 26.1.
Next, Stone contends that this is an appeal from the denial of his "right to petition the Plaintiffs['] foreign judgment" authorized by section 27.003 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code § 27.003. However, Stone's pleadings in the underlying case do not invoke the Texas Citizens Participation Act (TCPA), which is inapplicable here.
Stone also contends that this is a permissive appeal authorized by section 51.014(d) of the Texas Civil Practice and Remedies Code and that a "controlling question of law exists." See id. § 51.014(d). However, that statute requires a written order from the trial court permitting the appeal. Id. No such order is contained in this record.
Stone further contends that this is an appeal under section 51.014(a)(7) of the Texas Civil Practice and Remedies Code because, in his view, he was denied the right to appear. See id. § 51.014(a)(7). However, Stone acknowledges that he "was neither granted or den[ied] appearance under Rule 120a." Cf. id.; Tex. R. Civ. P. 120a. The record does not contain any order on a special appearance and does not reflect that Stone filed a special appearance.
Stone's remaining complaints, involving his appeal to the United States Supreme Court and his lack of notice of an unspecified hearing, do not allege any basis for our jurisdiction over his appeal from the order denying his motion to set aside a writ of execution.
We conclude that Stone has not demonstrated any basis for our jurisdiction over his appeal from the March 29, 2017 order denying his motion to set aside a writ of execution. See Schultz, 810 S.W.2d at 740; J.D.C. Recovery, Inc., 2006 Tex. App. LEXIS 9151, at *3. Accordingly, we dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a).
/s/_________
Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Pemberton and Goodwin Dismissed for Want of Jurisdiction Filed: August 18, 2017