Lan Nguyen and Van Hong Do v. Aventus Insurance Company ( 2018 )

Appeal Dismissed and Memorandum Opinion filed October 23, 2018.
In The
Fourteenth Court of Appeals
NO. 14-18-00720-CV
LAN NGUYEN AND VAN HONG DO, Appellants
V.
AVENTUS INSURANCE COMPANY, Appellee
On Appeal from the Co Civil Ct at Law No 2
Harris County, Texas
Trial Court Cause No. 1100805
MEMORANDUM OPINION
This is an attempted appeal from two interlocutory orders. Appellee filed a
motion to dismiss for lack of jurisdiction. For the reasons below, we grant appellee’s
motion dismiss the appeal.
On August 10, 2018, appellants filed a notice of appeal from an interlocutory
order signed April 2, 2018 granting appellee’s plea to the jurisdiction, request for
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special exceptions, request for sanctions, and dismissing appellants’ claims. The
order required appellee to submit evidence of reasonable and necessary attorney’s
fees within twenty-one days of the signing of the order “for the court to determine
the appropriate amount of monetary sanctions, penalties, expenses, and attorney’s
fees to impose on plaintiffs’ counsel.” This court issued a notice of intent to dismiss,
indicating the record reflected the notice of appeal was untimely. We requested a
response on or before September 10, 2018 showing meritorious grounds for
continuing the appeal. On September 10, 2018, appellants filed a second notice of
appeal. Appellants’ second notice of appeal purported to appeal an interlocutory
order signed on August 10, 2018 denying appellants’ motion to recuse.
Appellee filed a motion to dismiss appeal for want of jurisdiction on
September 25, 2018. Appellee contends neither the April 2, 2018 order nor the
August 10, 2018 order is appealable and the appeal should be dismissed for lack of
jurisdiction.
I. The April 2, 2018 Order
Generally, appellate courts have jurisdiction only over appeals from final
judgments. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Our
jurisdiction to immediately consider appeals from interlocutory orders exists only if
a statute explicitly provides appellate jurisdiction. See Stary v. DeBord, 967 S.W.2d
352, 352-53 (Tex. 1998). A judgment is interlocutory if the amount awarded cannot
be determined. In re Blankenhagen, 513 S.W.3d 97, 100 (Tex. App.—Houston [14th
Dist.] 2016, orig. proceeding). For a judgment to be final, it must be certain, so that
it can be enforced by a writ of execution. Id.The April 2, 2018 order decides some issues but leaves the amount of
attorney’s fees and monetary sanctions to be determined at a future date. It includes
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no language constituting a clear expression of judicial intent that the order be
considered final and appealable. This order could not be enforced by a writ of
execution. The order is, therefore, interlocutory and not subject to appeal. See id. at
101 (holding that a judgment is not final where damages have not yet been
determined and are not ascertainable).
Further, no statutory exception allows an interlocutory appeal of the April 2,
2018 order. The Texas Civil Practice and Remedies Code allows an appeal from an
interlocutory order that grants or denies a plea to the jurisdiction by a governmental
unit. Tex. Civ. Prac. & Rem. Code Ann. § 51.04(a)(8). Here, however, the movant,
Aventus Insurance Company, is not a governmental unit. See id. at § 101.001(3).
Accordingly, the order granting its jurisdictional plea is not appealable before final
judgment. See Baylor College of Medicine v. Hernandez, 208 S.W.3d 4, 8 (Tex.
App.—Houston [14th Dist.] 2006, pet. denied). Additionally, an order sustaining
special exception is interlocutory in nature and not appealable before final judgment.
See Harris County Flood Control Dist. v. Adam, 56 S.W.3d 665, 667 n.8 (Tex.
App.—Houston [14th Dist.] 2001, no pet.). Finally, no authority permits an
interlocutory appeal of an order granting a motion for sanctions. The propriety of an
order awarding sanctions must await a final judgment. Jacintoport Corp. v. Almanza,
987 S.W.2d 901, 903 (Tex. App.—Houston [14th Dist.] 1999, no pet.).
II. The August 10, 2018 Order
The August 10, 2018 order denied appellants’ motion to recuse. Such an order
is not subject to interlocutory appeal. The Texas Rules of Civil Procedure provide
“an order denying a motion to recuse may be reviewed only for abuse of discretion
on appeal from the final judgment.” Tex. R. Civ. P. 18a (j)(1)(A); see In re Hart,
460 S.W.3d 742, 743 (Tex. App.—Fort Worth 2015, no pet.) (dismissing appeal
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from an order denying a motion to recuse when no final judgment existed). As
discussed above, our record does not reflect that the trial court has signed a final
judgment in this case because the amount of attorney’s fees and monetary sanctions
remains to be determined. Thus, the August 10, 2018 order is not appealable at this
time.
Accordingly, appellee’s motion to dismiss is granted and the appeal is ordered
dismissed. Appellants’ motion for extension of time to file appellants’ brief is denied
as moot.
PER CURIAM
Panel consists of Justices Donovan, Wise, and Jewell.
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