Laszlo Herczeg v. City of Austin ( 2024 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00754-CV
Laszlo Herczeg, Appellant
v.
City of Austin, Appellee
FROM COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
NO. C-1-CV-20-003717, THE HONORABLE TODD T. WONG, JUDGE PRESIDING
MEMORANDUM OPINION
Laszlo Herczeg filed a notice of appeal on November 6, 2023, attempting to
appeal from the trial court’s scheduling order signed on April 7, 2023. On January 12, 2024, this
Court requested a response from appellant by January 22, 2024, explaining how this Court may
exercise jurisdiction over this appeal because it appeared that appellant was attempting to appeal
from a non-appealable interlocutory order and that his notice of appeal was untimely. This Court
informed appellant that his appeal may be dismissed for want of jurisdiction unless he timely
responded and demonstrated jurisdiction.
Appellant timely responded, contending that this Court has jurisdiction over the
appeal pursuant to Texas Civil Practice and Remedies Code Section 51.014(7) because he stated
on the record at a March 21, 2022 hearing on appellee’s motion to substitute counsel that “this
is a special appearance.” He further contends that such “special appearance” was “denied by
operation of law [on November 7, 2023] because of the court’s action to proceed with [a] pre-
trial” conference on that date. However, the clerk’s record does not contain a special appearance
filed by appellant or a signed order by the trial court ruling on a special appearance, and the
clerk’s record reflects that appellant filed an original answer to the appellee’s lawsuit on
August 14, 2020, without making it subject to a special appearance or otherwise objecting to the
trial court’s personal jurisdiction over him. Cf. Tex. R. Civ. P. 120a (allowing party to specially
appear for limited purpose of challenging personal jurisdiction and providing that such “special
appearance shall be made by sworn motion filed prior to motion to transfer venue or any other
plea, pleading or motion”); Tex. Civ. Prac. & Rem. Code § 51.014(7) (authorizing interlocutory
appeal from trial court’s order granting or denying special appearance of defendant under Texas
Rule of Civil Procedure 120a); see also Tex. R. Civ. P. 121 (“An answer shall constitute an
appearance of the defendant.”). Thus, there is no special appearance and no ruling thereon for
this Court to review.
Furthermore, to the extent that appellant is attempting to appeal from the
scheduling order, such orders are non-appealable, interlocutory orders over which this Court has
no jurisdiction to review. Cf. Tex. Civ. Prac. & Rem. Code § 51.014 (providing for appealable
interlocutory orders); Scripps NP Operating, LLC v. Carter, 573 S.W.3d 781, 788 (Tex. 2019)
(noting that appellate courts have jurisdiction over appeals from final judgments and certain
interlocutory orders made appealable by statute). Moreover, even if scheduling orders were
subject to review by interlocutory appeal, Herczeg’s notice of appeal—filed more than six
months after the signed scheduling order—is untimely. See Tex. R. App. P. 26.1(a), (b); see also
Tex. R. App. P. 25.1(b) (appeal is perfected when written notice of appeal is filed); Texas Ent.
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Ass’n v. Combs, 431 S.W.3d 790, 796 (Tex. App.—Austin 2014, pet. denied) (timely filing of
notice of appeal is necessary to invoke appellate court’s jurisdiction).
We therefore lack jurisdiction over this appeal and accordingly dismiss the appeal
for want of jurisdiction. See Tex. R. App. P. 42.3(a).
__________________________________________
Thomas J. Baker, Justice
Before Justices Baker, Triana, and Kelly
Dismissed for Want of Jurisdiction
Filed: February 2, 2024
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