in Re Robert Joseph Yezak ( 2021 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
ON REHEARING
NO. 03-20-00466-CV
Robert Joseph Yezak, Appellant
v.
Jeana A. Riley, Appellee
NO. 03-21-00042-CV
In re Robert Joseph Yezak
FROM THE 20TH DISTRICT COURT OF MILAM COUNTY
NO. CV40,354, THE HONORABLE JOHN YOUNGBLOOD, JUDGE PRESIDING
MEMORANDUM OPINION
We withdraw our previous opinion and judgment issued on December 30, 2020,
and substitute the following opinion and judgment in their place. We deny the motion for
rehearing filed by appellant Robert Joseph Yezak. We dismiss Yezak’s appeal for want of
jurisdiction. Because Yezak also requests that we consider this appeal as a petition for writ of
mandamus in the alternative, we do so in the interest of judicial efficiency and deny mandamus
relief.
I. Dismissal for want of jurisdiction
Yezak filed a notice of appeal from the trial court’s September 1, 2020 order
denying appellant’s request for a temporary restraining order. Upon initial review, the Clerk of
this Court sent Yezak a letter informing him that this Court appears to lack jurisdiction over the
appeal because our jurisdiction is limited to appeals in which there exists a final or appealable
judgment, or in the case of an interlocutory order, there is a statute that provides for an
interlocutory appeal. An order denying a request for temporary restraining order is neither. See
Tex. Civ. Prac. & Rem. Code § 51.012; Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.
2001) (explaining that appeal generally may only be taken from final judgment that disposes of
all pending parties and claims in record unless statute provides for interlocutory appeal); Stary v.
DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998) (absent explicit statutory authority, appellate
courts lack jurisdiction to consider immediate appeals of interlocutory orders); see also Tex. Civ.
Prac. & Rem. Code § 51.014 (specifically permitting appeal of various interlocutory orders but
not permitting appeal from grant or denial of temporary restraining order). The Clerk requested
a response on or before December 10, 2020, informing this Court of any basis that exists for
jurisdiction. When we issued our initial opinion on December 30, 2020, the Court had not
received a response from Yezak.
On January 4, 2021, the Court received a response from Yezak indicating that he
did not receive the Court’s letter until December 9, 2020, making it impossible for him to
respond by December 10, 2020. The envelope was postmarked December 15, 2020. Under what
is referred to as the “prisoner-mailbox rule,” an incarcerated pro se litigant’s legal instruments
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are deemed filed “at the time the prison authorities duly receive the document to be mailed.”
Warner v. Glass, 135 S.W.3d 681, 684 (Tex. 2004) (per curiam); see also Houston v. Lack, 487
U.S. 266, 276 (1988) (adopting same rule before Federal Rule of Appellate Procedure was
amended to reflect Supreme Court’s holding in Houston); Campbell v. State, 320 S.W.3d 338,
344 (Tex. Crim. App. 2010) (adopting prisoner-mailbox rule for pro se inmate filings in criminal
appeals); Ramos v. Richardson, 228 S.W.3d 671, 673-74 (Tex. 2007) (per curiam) (extending
prisoner-mailbox rule to civil suits filed by pro se inmates outside of context of Inmate Litigation
Act, Tex. Civ. Prac. & Rem. Code §§ 14.001-.014). The rationale underlying this rule is that “an
inmate who does everything necessary to satisfy timeliness requirements must not be penalized if
the document is ultimately filed tardily because of an error on the part of officials over whom the
inmate has no control.” See Ramos, 228 S.W.3d at 673.
Yezak stated in his response that he was submitting the response on December 9,
2020. Therefore, we consider his response timely filed and address it here. See id. (concluding
that petitioners’ statements that “notices of appeal were placed in the ‘outgoing prison mailbox’”
on March 9, 2005, satisfied their burden to provide “some measure of proof that their notices of
appeal were placed in the United States mail on or before March 21, 2005”). Yezak argues in his
response that his application to the trial court for a temporary restraining order “was the only
means available for an injunction against [the allegedly illegal nonjudicial foreclosure]” and that
because it was “the only method available of preventing the wrongful foreclosure from taking
place, the denial becomes an act of final judgment.”
As we explained in our initial letter to Yezak questioning our jurisdiction, an
order ruling on an application for temporary restraining order is not a final judgment that
disposes of all claims and parties. In his petition, in addition to the temporary restraining order,
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Yezak sought a temporary injunction, compensatory and statutory damages, and attorney’s fees.
The trial court’s September 1, 2020 order addresses only Yezak’s application for a temporary
restraining order. The ruling from which Yezak seeks to appeal is interlocutory, not final,
because he seeks other relief that remains pending in the trial court. See Westbrook v. Fondren,
No. 02-09-173-CV, 2009 WL 2914311, at *1 (mem. op.) (Tex. App.—Fort Worth Sept. 10,
2009, no pet.).
“Appellate courts have jurisdiction to consider immediate appeals of interlocutory
orders only if a statute explicitly provides appellate jurisdiction.” Stary v. DeBord, 967 S.W.2d
at 352-53; see also Tex. Civ. Prac. & Rem. Code § 51.014. No statutory provision permits an
appeal from the grant or denial of a temporary restraining order.1 See Lesikar v. Rappeport, 899
S.W.2d 654, 655 (Tex. 1995); Nikolouzos v. St. Luke’s Episcopal Hosp., 162 S.W.3d 678, 680-
81 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Thus, the grant or denial of a temporary
restraining order is generally not appealable. See In re Tex. Nat. Res. Conservation Comm’n, 85
S.W.3d 201, 205 (Tex. 2002) (addressing grant of temporary restraining order); Nikolouzos, 162
S.W.3d at 680-81. While 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,
Nikolouzos, 162 S.W.3d at 680-81, in this case the order concerns only Yezak’s application for a
temporary restraining order. It contains blanks for a hearing to be set on Yezak’s application for
a temporary injunction, and the trial court denied the temporary restraining order without a
1
“A 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) (quoting Brines v.
McIlhaney, 596 S.W.2d 519, 524 (Tex. 1980)).
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hearing. Accordingly, the trial court’s order is a nonappealable interlocutory order, and
therefore, we dismiss the appeal for want of jurisdiction.2 See Tex. R. App. P. 42.3(a).
II. Motion for rehearing and petition for writ of mandamus
After receiving the Court’s December 30, 2020 opinion on January 6, 2021,
Yezak sent a response to the Court, which in substance is a motion for rehearing. See Surgitek,
Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999) (“[W]e look to the substance of a
motion to determine the relief sought, not merely to its title.”). The motion for rehearing reurges
the same arguments disposed of above. We deny the motion for rehearing.
In the alternative, Yezak requests that we consider his interlocutory appeal as a
petition for writ of mandamus. In the interest of judicial efficiency, we have given the
documents filed in the appeal consideration as a petition for writ of mandamus. The Court
denies the petition for writ of mandamus.3 See Tex. R. App. P. 52.8(a), (d) (“When denying
relief, the court may hand down an opinion but is not required to do so.”); see also Westbrook,
2009 WL 2914311, at *2.
__________________________________________
Gisela D. Triana, Justice
2
We note that Yezak states in his response that the foreclosure of the property has
already occurred, likely rendering Yezak’s request for a temporary restraining order to stop the
foreclosure moot. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) (orig.
proceeding) (“A case becomes moot if a controversy ceases to exist between the parties at any
stage of the legal proceedings, including the appeal.”). Yezak acknowledges as much in his
response letter and his motion for rehearing by stating that a wrongful-foreclosure suit becomes
available after the foreclosure occurs (as opposed to a suit for injunctive relief before the
foreclosure occurs).
3
The Court denies Yezak’s request that we file a notice of appeal for him with the Texas
Supreme Court. Yezak must file directly with the Texas Supreme Court if he wishes to seek
review of this Court’s rulings on his appeal and his mandamus.
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Before Justices Goodwin, Triana, and Smith
03-20-00466-CV, Dismissed for Want of Jurisdiction
03-21-00042-CV, Petition for Writ of Mandamus Denied
Filed: January 29, 2021
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