Spiro Nikolouzos by His Wife Jannette Nikolouzos v. St Lukes Episcopal Hospital ( 2005 )

Dismissed and Majority and Concurring Opinions filed March 17, 2005

Dismissed and Majority and Concurring Opinions filed March 17, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-05-00267-CV

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SPIRO NIKOLOUZOS by his wife, JANNETTE NIKOLOUZOS, Appellant

V.

ST. LUKE=S EPISCOPAL HOSPITAL, Appellee

On Appeal from the 189th District Court

Harris County, Texas

Trial Court Cause No. 05-16058

M A J O R I T Y   O P I N I O N

This is an attempted interlocutory appeal from the oral denial of appellant=s first and second applications for temporary restraining orders.  We dismiss the appeal for want of jurisdiction.

The underlying action is brought under the Advance Directives Act,^[1] specifically Texas Health and Safety Code section 166.046(g), which provides a mechanism to seek a judicial extension of the time period in which to find alternative treatment for a patient when the hospital has determined that life-sustaining treatment is inappropriate. The statute provides:

At the request of the patient or the person responsible for the health care decisions of the patient, the appropriate district or county court shall extend the time period provided under Subsection (e) [10 days after the written decision by the hospital=s ethics committee is provided to the patient or responsible person] only if the court finds, by a preponderance of the evidence, that there is a reasonable expectation that a physician or health care facility that will honor the patient=s directive [regarding life-sustaining treatment] will be found if the time extension is granted.

Tex. Health & Safety Code Ann. ' 166.046(g) (Vernon Supp. 2004-05).

Appellant filed an original petition seeking an extension of time for continued life support, injunctive relief, and monetary damages.  At the same time, appellant filed an application for a temporary restraining order and temporary injunction.  The trial court conducted a hearing on appellant=s first application for temporary restraining order on March 9, 2005.  At the conclusion of the hearing, the court orally denied the application.  The court permitted appellant to file a second application for a temporary restraining order, and the court conducted a hearing on March 11, 2005.  The court again orally denied the application. Appellant then filed a notice of appeal from the denial of both TRO applications.

On March 15, 2005, appellee filed a motion to dismiss the appeal for want of jurisdiction.  See Tex. R. App. P. 42.3(a).  Appellee argues that this court lacks jurisdiction over appellant=s attempted appeal from the denial of temporary restraining orders in the absence of express statutory authority.

Because appellant sought other relief that remains pending in the trial court, the rulings appellant seeks to appeal are interlocutory.  See North E. I.S.D. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966) (noting Ato be final a judgment must dispose of all issues and parties in a case@). It is well settled that appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only if a statute specifically provides for appellate jurisdiction.  Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998).  Section 166.046 does not expressly provide a right to appeal the trial court=s ruling on a request for extension of time for life sustaining treatment, thus indicating the legislature did not intend to permit such an appeal.  See, e.g., Ex parte Burr, 139 S.W.3d 446, 448 (Tex. App.CDallas 2004, pet. struck) (holding that failure to include right to appeal in statute indicated legislature did not intend to permit appeal from denial of temporary restraining order). 

While an interlocutory appeal from the grant or denial of a temporary injunction is allowed, no statutory provision permits an appeal from a temporary restraining order.^[2]  See Lesikar v. Rappeport, 899 S.W.2d 654, 655 (Tex. 1995); Cross Media Network, Inc. v. Sandefer, 2000 WL 1260251, *1 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (not designated for publication); see also Tex. Civ. Prac. & Rem. Code Ann. ' 51.014 (Vernon Supp. 2004-05) (specifically permitting appeal of interlocutory orders in ten instances, but not including the grant or denial of a temporary restraining order).  Thus, the grant or denial of a temporary restraining order is generally not appealable. In re Tex. Nat. Res. Conservation Comm=n, 85 S.W.3d 201, 205 (Tex. 2002).

However, the fact that the order is denominated a temporary restraining order is not determinative of whether the order is appealable.  Whether an order is a nonappealable temporary restraining order or an appealable temporary injunction depends on the order=s characteristics and function, not its title.  Qwest Communications Corp. v. AT & T Corp., 24 S.W.3d 334, 336 (Tex. 2000).  If the force and effect of the order is indistinguishable from that of a temporary injunction, then the order is appealable.  Plant Process Equip., Inc. v. Harris, 579 S.W.2d 53, 54 (Tex. App.CHouston [14th Dist.] 1979, no writ).  The record in this case demonstrates that the initial relief requested was a temporary restraining order pending a subsequent hearing on a temporary injunction, and the parties at the hearings treated them as hearings on applications for temporary restraining orders.  No testimony was taken at the hearings.  At the conclusion of each hearing, the trial court denied appellants= applications for temporary restraining orders.  Under these facts, the rulings at issue are denials of temporary restraining orders, not denials of injunctions.

On March 16, 2005, appellant filed a response to appellee=s motion to dismiss.  In support of the court=s exercise of jurisdiction over the appeal from the denial of temporary restraining orders, appellant cites Lord v. Clayton, 352 S.W.2d 718, 163 Tex. 62 (1961).  In Lord, however, the relators sought a writ of mandamus to resolve a jurisdictional dispute between two criminal courts, in which one court had issued an order restraining a habeas corpus proceeding in the other court.  Id. at 719 (emphasis added).  The Texas Supreme Court recognized that normally mandamus would not issue to interfere with a trial court=s injunctive orders because, even though a restraining order is not appealable, any injunction would have been appealable and the parties would have been required to appeal rather than seek mandamus relief.  Id. The court found that the jurisdictional conflict between the two courts had reached a point where the public interest and orderly administration of justice would suffer irreparably unless it resolved the conflict.  Id. Although there is no question that appellant has the most compelling personal interest at stake, this court lacks the power to exercise jurisdiction where none is provided by law.

After having considered the motion and response, we hold that we lack jurisdiction over this attempted appeal from the denial of temporary restraining orders.  When a party attempts to appeal a nonappealable interlocutory order, an appellate court has no jurisdiction except to dismiss the appeal.  Lipshy Motorcars, Inc. v. Sovereign Assocs., Inc., 944 S.W.2d 68, 70 (Tex. App.CDallas 1997, no writ); Harper v. Welchem, Inc., 799 S.W.2d 492, 496 (Tex. App.CHouston [14th Dist.] 1990, no writ). 

Accordingly, we grant appellee=s motion, and the appeal is ordered dismissed.  This court=s writ of injunction issued March 15, 2005, under our cause number 14-05-00273-CV is dissolved by its own terms.

/s/    Charles Seymore

Justice

Judgment rendered and Majority and Concurring Opinions filed March 17, 2005.

Before the court en banc.  (Fowler, J., concurring).

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^[1]  Tex. Health & Safety Code Ann. '' 166.001B166.166 (Vernon Supp. 2004-05).

^[2]  AA temporary restraining order is one entered as part of a motion for a temporary injunction, by which a party is restrained pending the hearing of the motion. A temporary injunction is one which operates until dissolved by an interlocutory order or until the final hearing.@ Del Valle I.S.D. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992).