Roman Benavidez, III and Naomi Benavidez v. Bill H. Pearl Productions, Inc. ( 2005 )

                                            NUMBER 13-05-141-CV

                                      COURT OF APPEALS

                            THIRTEENTH DISTRICT OF TEXAS

                              CORPUS CHRISTI - EDINBURG

___________________________________________________________________

ROMAN BENAVIDEZ, III AND

NAOMI BENAVIDEZ,                                                                            Appellants,

                                                             v.

BILL H. PEARL PRODUCTIONS, INC.,                                                        Appellee.

___________________________________________________________________

                               On appeal from the 214th District Court

                                           of Nueces County, Texas.

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                                 MEMORANDUM OPINION

                                       Before Justices Hinojosa, Yañez, and Rodriguez

                                                  Memorandum Opinion Per Curiam

This is a permissive interlocutory appeal of three court orders, one granting summary judgment on liability in favor of appellee, Bill H. Pearl Productions, Inc., one denying a motion for reconsideration filed by appellants, Roman and Naomi Benavidez, and one sustaining appellee's objections to the affidavit of Eliborio Diaz.  Although an agreed appeal, appellee has moved for dismissal on the grounds that appellants are not entitled to a permissive interlocutory appeal under 51.014(d) of the Texas Civil Practice and Remedies Code.  See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(d) (Vernon Supp. 2005).  We agree and dismiss this appeal.

The instant appeal was filed by agreement pursuant to section 51.014(d) of the Texas Civil Practice and Remedies Code.  See id.  Subsection (d) was added by the Texas Legislature to allow for permissive interlocutory appeals.  See id.  However, the act that added subsection (d), applies only to a suit that is commenced on or after the effective date of this Act.  A suit that is commenced before the effective date of this Act is governed by the law applicable to the suit immediately before the effective date of this Act, and that law is continued in effect for that purpose.  Id. historical note (Vernon Supp. 2005) [Act of June 16, 2001, 77th Leg., R.S., ch. 1389, ' 3, 2001 Tex. Gen. Laws 2399, 3575.  The effective date of this legislation is September 1, 2001.  See id.  The instant case was filed on April 12, 2001.

"A party may not appeal an interlocutory order unless authorized by statute."  Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001) (quoting Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex. 1985) (per curiam)). When this suit was filed, permissive interlocutory appeals were not yet authorized by statute.  The legislative history clearly sets out that a suit filed before the effective date of the act is governed by the law in effect at that time and that law continues.  See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(d) historical note (Vernon Supp. 2005) [Act of June 16, 2001, 77th Leg., R.S., ch. 1389, ' 3, 2001 Tex. Gen. Laws 2399, 3575]. Therefore, although the parties have acted in good faith in an attempt to advance the ultimate termination of the litigation, they are not entitled to a permissive interlocutory appeal pursuant to section 51.014(d).

Accordingly, appellee's motion to dismiss is GRANTED, and this permissive interlocutory appeal is DISMISSED FOR WANT OF JURISDICTION.

PER CURIAM

Memorandum Opinion delivered and

filed this 23rd day of November, 2005.