Friday, March 5, 2010

Another Appeal Dissed for Lack of a Final Appealable Order



This time, the First Court of Appeals dismisses an attempted appeal from an order entered in a family court case that was not final and for which interlocutory appellate review was not authorized by statute.


On December 31, 2009, the Clerk of this Court sent appellant a notice letter advising him that the August 25, 2009 order he was appealing appeared to be an interlocutory one, not legally authorized to be appealed. In the letter, the Clerk advised appellant that the Court might dismiss the appeal for want of jurisdiction, unless, in a written response, he provided a meritorious explanation showing that the Court had jurisdiction of the appeal. Appellant has filed his response, conceding that the appeal must be dismissed for want of jurisdiction.

The general rule, with a few mostly statutory exceptions, is that an appeal may be taken only from a final judgment. Kossie v. Smith, No. 01-08-00065-CV, 2009 Tex. App. LEXIS 1739 at *1 (Tex. App.--Houston [1st Dist.] March 9, 2009, no pet.) (mem. op.) (citing Lehmann v. Har-Con Corp. 39 S.W.3d 191, 195 (Tex. 2001)). Interlocutory orders may be appealed only if allowed by statute. Kossie, at *1(citing Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001)). The August 25, 2009 interlocutory order from which appellant has appealed is not an order that is made appealable by statute. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (Vernon 2008). Thus, we lack subject-matter jurisdiction over the interlocutory order that appellant has appealed. See Kossie at *2 (dismissing appeal of interlocutory order sustaining contest to affidavit of indigence); Kilsby v. Mid-Century Ins. Co. of Tex., No. 14-07-00981-CV, 2008 Tex. App. LEXIS 2380, (Tex. App.--Houston [14th Dist.] Apr. 3, 2008, no pet.) (memo op.) (dismissing appeal of interlocutory order sustaining challenge to affidavit of inability to pay costs); see also In re K. J. M., No. 02-08-038-CV, 2008 Tex. App. LEXIS 1924 (Tex. App.--Fort Worth Mar. 13, 2008, no pet.) (memo op.) (dismissing appeal of interlocutory order sustaining challenge to indigency affidavit and denying appointment of counsel to represent appellant in habeas challenge to order of contempt in child-support-enforcement action).

We dismiss the appeal for lack of subject-matter jurisdiction. Any pending motions are overruled as moot.

Tilotta v. Smith-Tilotta (Tex.App.- Houston [1st Dist.] March 4, 2010)(per curiam) (no final order to appeal from, interlocutory appeal not authorized) DISMISS APPEAL: Per Curiam
Before Justices Jennings, Hanks and Bland
01-09-00817-CV Michael Tilotta v. Dewana Smith-Tilotta
Appeal from 257th District Court of Harris County
Trial Court Judge: The
Honorable Judy L. Warne

RELATED TERMS & PHRASES: interlocutory appeal (ILA), finality of order or judgment required for regular appeal, dismissal of appeal for want of jurisdiction (DWOJ), no appellate jurisdiction in absence of appealable order

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