Larry Bradshaw v. Cummins Southern Plains, LLC ( 2022 )

Order filed December 15, 2022
In The
Eleventh Court of Appeals
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No. 11-22-00302-CV
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LARRY BRADSHAW, Appellant
V.
CUMMINS SOUTHERN PLAINS, LLC, Appellee
On Appeal from the 358th District Court
Ector County, Texas
Trial Court Cause No. D-18-07-0767-CV
ORDER
Appellant, Larry Bradshaw, filed a pro se notice of appeal from the trial
court’s Order Regarding Plaintiff’s Motion to Compel. After this appeal was
docketed, we informed Appellant that it did not appear that the order from which
Appellant attempted to appeal was final and appealable, and we requested that
Appellant provide this court with a response showing grounds to continue this
appeal. See TEX. R. APP. P. 42.3.
In response, Appellant paid the filing fee and filed an addendum to his notice
of appeal. He also filed a response in which he states: “Plaintiff, having filed a
premature Notice of Appeal pursuant to Rule 27.1, is asking the court to treat such
action taken before an appealable order is signed pursuant to Rule 27.2 . . . .” See
TEX. R. APP. P. 27. The reasons given by Appellant in his response include
Appellee’s fraud on the court, Appellee’s discovery abuse, the trial court’s abuse of
its discretion, the existence of a conspiracy, the disqualification of the trial judge,
and the merits of Appellant’s motion to compel discovery. Additionally, Appellant
also indicates that mandamus relief may be available. However, Appellant did not
file a petition for writ of mandamus; he filed a notice of appeal.
Unless specifically authorized by statute, appeals may be taken only from
final judgments. Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840–41 (Tex.
2007); Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment
is final and appealable if it disposes of all parties and all claims in the case.
Lehmann, 39 S.W.3d at 195. The order that Appellant attempts to appeal is not a
final, appealable order. Rather, it is an interlocutory order from which no appeal is
authorized by statute. See generally TEX. CIV. PRAC. & REM. CODE ANN. § 51.014
(West Supp. 2022) (permitting appeals from certain interlocutory orders). “The
denial of a motion to compel discovery may be challenged by a petition for
mandamus, but it is not an appealable interlocutory order.” Rudder v. Hannah,
No. 2-04-112-CV, 2004 WL 1176655, at *1 (Tex. App.—Fort Worth May 27, 2004,
no pet.) (mem. op.).
Because the order from which Appellant attempts to appeal is an interlocutory
order regarding discovery and because a final, appealable order has not yet been
entered in this cause, we have determined that an abatement is appropriate at this
time. See TEX. R. APP. P. 27.2. Consequently, we abate this appeal—pursuant to
Rule 27.2 of the Texas Rules of Appellate Procedure—to permit the parties to obtain
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a final, appealable order or judgment. If a final, appealable order or judgment has
not been entered by February 28, 2023, we may dismiss this appeal. See TEX. R.
APP. P. 42.3. If a final judgment is entered before that date, the parties are ordered
to notify this court immediately.
The appeal is abated.
PER CURIAM
December 15, 2022
Panel consists of: Bailey, C.J.,
Williams, J., and Wright, S.C.J.1
Trotter, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
3