Thursday, November 19, 2009

Appeal of Denial of Motion to Dismiss Dismissed for Want of Jurisdiction

Houston's First Court of Appeals, in an opinion penned by its only Democratic member, holds that it did not acquire jurisdiction to entertain the argument that the trial court should have dismissed the underlying credit card collection suit. The case originated in JP court and involved - with attorney's fees - more than $5000 as amount in controversy - the jurisdictional limit for JP courts at the time. The defendant-debtor's notice of appeal was not timely; Nor was an immediate appellate challenge to the trial court's denial of the jurisdictional motion even permitted in the absence of a final judgment or statutory authority for interlocutory review. The attempted appeal seeking dismissal of the case in the court below on jurisdictional grounds thus gets itself dismissed for lack of jurisdiction.


Appellee, United Asset Recovery (“UAR”), sued Ms. Siddiqui in Harris County Justice Court, Precinct 5, Place 2, to recover $6,327.96 in unpaid credit card debt and attorney fees of $1,898.36. In her pro se answer, Ms. Siddiqui requested a transfer of venue to a different precinct, stating that the court’s location was too far from her house. Ms. Siddiqui also apparently advanced arguments to dismiss the case in the justice court, although no motion in the justice court to that effect appears in the appellate record. UAR asserted, in a “Response to [Ms. Siddiqui’s] Motion to Dismiss” filed in the justice court, that the judgment sought was within the justice court’s jurisdictional limits because it consisted of “a principal balance of $4,014.20, with prejudgment interest of $2,313.76, court costs, service fees, and attorney’s fees.” UAR alternatively prayed that, if the justice court found that the claim was not within its jurisdictional limits, the case be transferred to county court.

Fn: At the time that the action was commenced, the maximum jurisdictional limit of justice courts was $5,000, exclusive of interest, and inclusive of attorneys’ fees. Act of May 19, 1991, 72nd Leg., R.S., ch. 776, 1991 Tex. Gen. Laws 2767, 2767 (amended 2007) (current version at Tex. Gov’t Code Ann. § 27.031(a)(1) (Vernon Supp. 2009)).

Although the justice court found that the amount sought was within its jurisdictional limits, the case was subsequently transferred to Harris County Civil County Court at Law Number Four. Ms. Siddiqui then filed a motion seeking to dismiss the case in the county court, asserting that the justice court never had jurisdiction and thus the case “was void” when transferred to county court. The basis of Ms. Siddiqui’s argument was that the amount in controversy pleaded exceeded the justice court’s jurisdictional limits and, therefore, the justice court never had jurisdiction over the dispute and the county court to which the case had been transferred likewise had no jurisdiction.[1] The county court denied the motion to dismiss on April 17, 2008.

On January 6, 2009, Ms. Siddiqui filed a notice of appeal complaining of the county court’s April 17, 2008 order. In this interlocutory appeal, Ms. Siddiqui prays that this Court dismiss UAR’s case in county court for lack of jurisdiction.[2]


Because appellant appeals from an interlocutory order, her notice of appeal was due on May 7, 2008. See Tex. R. App. P. 26.1(b), 28.1(a), (b) (providing that notice of appeal is due 20 days after signing of interlocutory order being appealed); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001) (holding that order or judgment is interlocutory unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and parties). Appellant filed her notice of appeal on January 6, 2009—almost eight months after the due date—stating therein that “[t]his is timely in that the lack of jurisdiction can be appealed at any time.” This pronouncement is a misstatement of the law.

While true that a lack of jurisdiction is fundamental error that does not need to be preserved and may be raised for the first time on appeal, see Denton County v. Huther, 43 S.W.3d 665, 667 n.2 (Tex. App.—Fort Worth 2001, no pet.), this does not mean that a person may appeal the trial court’s lack of subject matter jurisdiction “at any time.” Appellant confuses the time for lodging one’s complaint regarding want of jurisdiction with the timeline for filing an appeal. Her reading would change the deadline to appeal a jurisdictional defect to “at any time she feels like it.” One seeking to appeal a particular ruling of a trial court must file her notice of appeal within the applicable time period prescribed by the Texas Rules of Appellate Procedure in order for the appellate court to be vested with jurisdiction to review the complained-of ruling. See Tex. R. App. P. 25.1(b). Without a timely filed notice of appeal, an appellate court has no jurisdiction to consider any complaint, even a complaint that the trial court had no subject matter jurisdiction over the case. Id.; see also Huther, 43 S.W.3d at 667 n.2 (noting that appellate court has no jurisdiction to address any issue, even contention of lack of subject matter jurisdiction, in absence of timely notice of appeal). In the present case, because appellant’s notice of appeal to this Court was untimely, we have not been vested with jurisdiction over her appeal. See Tex. R. App. P. 25.1(b); Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 564 (Tex. 2005) (holding that, because notice of appeal was untimely, court of appeals lacked jurisdiction over appeal; dismissing appeal for want of jurisdiction).

Furthermore, we note that, because appellant seeks to appeal an interlocutory order, we have no jurisdiction to consider her appeal unless the order is one for which interlocutory appeal is permitted under the statutory provisions of section 51.014 of the Texas Civil Practices and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(Vernon 2008) (listing interlocutory orders from which interlocutory appeal may be taken); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (holding that Texas appellate courts only have appellate jurisdiction over appeals from final orders or judgments, unless statute permits appeal from interlocutory order).

The interlocutory order of which appellant complains is not one for which an interlocutory appeal is permitted. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a). Appellant cites no statutory basis for our jurisdiction to consider her interlocutory appeal. Appellant does contend that jurisdictional issues can be raised at any time, including on appeal. As noted previously, that tenet of law relates to the preservation of the issue for appellate review, not the jurisdiction of a reviewing court to consider an appeal. Huther, 43 S.W.3d at 667 n.2.

Regardless of the claim being made on appeal, an appellate court only has jurisdiction to consider interlocutory appeals when specifically provided for by statutory authority. See Young v. Villegas, 231 S.W.3d 1, 4, 6 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (rejecting argument that appellate court had jurisdiction because “lack of subject matter jurisdiction could be raised at any time” and holding that appellate court had no jurisdiction to entertain interlocutory appeal absent statutory authority, even when contention on appeal was that trial court lacked jurisdiction). In the present case, the interlocutory order sought to be appealed is not one for which an interlocutory appeal is authorized.[3] See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a). Accordingly, even if appellant had filed a timely notice of appeal, we would be required to dismiss this appeal for lack of jurisdiction. Young, 231 S.W.3d at 6.

Siddiqui v. Unlimited Asset Recovery, Inc. (Tex.App.- Houston [1st Dist.] Nov. 19, 2009)(Sharp) (credit card debt suit, transfer from JP court to county court, notice of appeal not timely, interlocutory appeal not permitted, no final judgment as prerequisite for ordinary appeal)
DISMISS APPEAL 11/19: Opinion by
Justice Jim Sharp
Before Justices Jennings, Higley and Sharp
01-09-00026-CV Iram Siddiqui v. Unlimited Asset Recovery, Inc.
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge:
Hon. Roberta A. Lloyd