Opinion
NO. 01-17-00036-CV
04-11-2017
JOHN ROBERT TATE, Appellant v. JULIA DEAN, INDEPENDENT ADMINISTRATOR WITH WILL AND CODICIL ANNEXED (INDEPENDENT ADMINISTRATOR) OF THE ESTATE OF HENRY HAROLD TATE, SR.; WALKER INTEREST, LLC; AND PATRICK A. WALKER, Appellees
On Appeal from the Probate Court No. 1 Harris County, Texas
Trial Court Case No. 418,075-401
MEMORANDUM OPINION
John Robert Tate is among 29 beneficiaries in the underlying action filed by the Independent Administrator for judicial discharge under section 405.003 of the Texas Estates Code. On January 6, 2017, Tate filed a notice of appeal from the trial court's December 9, 2016 interlocutory order dismissing his third-party cross action in the case. The trial court has not entered a final order and has not severed the parties and claims that are the subject of this appeal. Appellees have moved to dismiss the appeal for want of jurisdiction. We grant the motion.
This Court has jurisdiction only over appeals from final judgments and those interlocutory orders specifically authorized by statute. See Bison Bldg. Materials, Ltd. v. Aldridge, 422 S.W.3d 582, 585 (Tex. 2012); CMH Homes v. Perez, 340 S.W.3d 444, 447-48 (Tex. 2011); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001); see also TEX. CIV. PRAC. & REM. CODE § 51.014 (authorizing appeals from certain interlocutory orders). In this case, the order Tate seeks to appeal is not final because it did not dispose of all claims and parties, and an interlocutory appeal of the order is not authorized. See CMH Homes, 340 S.W.3d at 447.
Tate does not contest that the order is an unappealable interlocutory order. Tate instead responds that he sought to make the order final by moving in the trial court to sever the proceeding that is the subject of his appeal. As of the date of this opinion, the trial court has not severed the action. The order thus remains interlocutory and not appealable.
Tate requests that we retain this appeal by considering his notice of appeal as premature under Texas Rule of Appellate Procedure 27.1(a). Under Rule 27.1(a), a prematurely filed notice of appeal is effective and deemed filed on the day of, but after, the event that begins the period for perfecting the appeal. TEX. R. APP. P. 27.1(a). But "Rule 27.1 does not contemplate an appellate place holder until there is a final appealable judgment." Ganesan v. Reeves, 236 S.W.3d 816, 817 (Tex. App.—Waco 2007, pet. denied); see also Dias v. Dias, No. 13-11-00756-CV, 2012 WL 171913, at *2 (Tex. App.—Corpus Christi Jan. 19, 2012, no pet.) (quoting Ganesan, 236 S.W.3d at 817 ("[T]here is nothing in Rule 27.1 or the remainder of the Rules of Appellate Procedure that indicate, and the clear implication is to the contrary, that a notice of appeal can be filed in anticipation of an appeal that may be somewhere in the indefinite future."). Rather, the rule is designed to give effect to a notice of appeal filed before the final appealable judgment is rendered is nevertheless effective to invoke our appellate jurisdiction of such a judgment. Id. A final judgment must still be rendered for our court to have jurisdiction. Our court similarly has held that "Texas Rule of Appellate Procedure 27.1 does not require the Court to docket and hold an appeal open until there is an appealable judgment or order at some future date." Correa v. Greater Northside Mgmt. Dist., No. 01-14-00169-CV, 2014 WL 1803016, at *1 (Tex. App.—Houston [1st Dist.] May 6, 2014, no pet.) (citing Dias, 2012 WL 171913, at *2).
Because there is no final judgment or appealable interlocutory order to appeal, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f). We dismiss any other pending motions as moot.
Jane Bland
Justice Panel consists of Justices Keyes, Bland, and Huddle.