Ernest Ray Koonce v. Wells Fargo Bank, N.A., as Trustee Under the Pooling and Servicing Agreement Dated as of April 1, 2005, Asset Backed Pass-Through Certificates, Series 2005-WHQ2 ( 2015 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
NOTICE OF INTENT TO DISMISS FOR WANT OF JURISDICTION
Appellate case name: Ernest Ray Koonce v. Wells Fargo Bank, N.A., as Trustee
Under the Pooling and Servicing Agreement Dated as of
April 1, 2005, Asset Back Pass-Through Certificates, Series
2005-WHQ
Appellate case number: 01-15-00228-CV
Trial court case number: 2010-64752
Trial court: 127th Judicial District Court of Harris County
The Court has directed me to notify you, because you are a pro se appellant, that
the appellees have moved to dismiss your appeal for lack of jurisdiction. See TEX. R.
APP. P. 42.3(a). The appellant appears to be attempting to appeal from a non-appealable
interlocutory order. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001).
This Court only has jurisdiction over final, appealable judgments or appealable
interlocutory orders. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 51.012, 51.014(a)(1)-
(12) (West Supp. 2014); see also Lehmann, 39 S.W.3d at 200. The trial court’s order,
signed on February 17, 2015, granting the appellees-defendants’ motion for new trial and
motion to reconsider appellant-plaintiff’s motion to dismiss and plea to the jurisdiction,
appears to be a non-appealable interlocutory order because it does not fall under any of
the authorized orders that are appealable. See TEX. CIV. PRAC. & REM. CODE ANN. §
51.014(a)(1)-(12).
Although appellant’s notice of appeal indicated that he filed a motion in the trial
court requesting permission to file the interlocutory appeal, it stated that the trial court
had not yet ruled on the motion. To the extent that appellant intended that his notice of
appeal be construed as a petition for permissive appeal, the petition does not comply with
the applicable rules, namely that it does not attach a copy of the trial court’s order
granting permission to appeal in that order. See TEX. R. APP. P. 28.3(a), (e)(2) & Notes
and Comments; TEX. R. CIV. P. 168 (“Permission must be stated in the order to be
appealed.”); see, e.g., Indemnity Ins. Co. of N. Am., et al. v. Helix Energy Solutions
Group, Inc., No. 01-13-00222-CV, 2013 WL 1932140, at *1 (Tex. App.—Houston [1st
Dist.] May 9, 2013, no pet.) (dismissing appeal for want of jurisdiction for lack of order
granting permission). On April 14, 2015, the appellees’ motion to dismiss the appeal
attached the trial court’s February 17, 2015 order granting appellees’ motion for new
trial, but that order did not grant appellant permission to appeal that order. Without a
petition containing the trial court’s interlocutory order granting permission to appeal that
order, this Court lacks jurisdiction to consider a petition for permissive appeal. See TEX.
R. APP. P. 28.3(a)-(b), (e); TEX. CIV. PRAC. & REM. CODE ANN. §§ 51.014(d), (f). If the
interlocutory order to be appealed has been amended by the trial court in response to an
appellant’s motion to include the court’s permission to appeal that order, the 15-day
deadline to file a petition for permissive appeal with this Court will run from the date the
amended order is signed. See TEX. R. APP. P. 28.3(c); TEX. R. CIV. P. 168 (“An order
previously issued may be amended to include such permission.”).
Accordingly, the Court has directed me to notify you that, unless the appellant
files a response to the motion to dismiss providing a detailed explanation, citing relevant
portions of the record, statutes, rules, and case law to show that this Court has jurisdiction
over the notice of appeal, such as by including any amended order by the trial court
granting permission to appeal that order, the appellees’ motion to dismiss this appeal for
lack of jurisdiction will be granted. See TEX. R. APP. P. 42.3(a), 43.2(f). Any response
must be filed within 10 days of the date of this notice.
Clerk’s signature:
Clerk of the Court
Date: April 30, 2015