Lowell Merritt v. Robert Davis

DISMISS and Opinion Filed November 19, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00402-CV
LOWELL MERRITT, Appellant
V.
ROBERT DAVIS, Appellee
On Appeal from the 380th Judicial District Court
Collin County, Texas
Trial Court Cause No. 380-1387-2009
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Myers
Opinion by Justice Myers
Before the Court is Robert Davis’s motion to dismiss the appeal. Davis contends the
appeal, from an order denying appellant’s motion to recuse the trial judge, should be dismissed
for want of jurisdiction. Davis also filed a motion to strike Lowell Merritt’s brief. Merritt filed a
reply to the motion to strike. He also filed an “Add To Appellant’s Reply” in which he
addressed whether there is an appealable order.
Merritt has been declared a vexatious litigant and is subject to the pre-filing order under
section 11.101 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM.
CODE ANN. § 11.101 (West Supp. 2014). In the trial court, Davis filed a motion to hold Merritt
in contempt of court after receiving a letter from Merritt threatening him with a lawsuit. Before
the hearing on the motion, Merritt filed a motion to recuse the trial judge. Following the hearing,
the trial court denied the motion to recuse and awarded sanctions after finding the motion to
recuse was groundless.
Nothing in the record before this Court shows that Merritt obtained the required
permission to appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 11.103(a) (West Supp. 2014).
Moreover, an order denying a motion to recuse may be reviewed only on appeal from a final
judgment. See TEX. R. CIV. P. 18a(j)(1)(a). The order Merritt is appealing is an unappealable
interlocutory order. For this reason, we grant Davis’s motion. We dismiss the appeal for want of
jurisdiction. See TEX. R. APP. P. 42.3(a).
140402F.P05
/Lana Myers/
LANA MYERS
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
LOWELL MERRITT, Appellant On Appeal from the 380th Judicial District
Court, Collin County, Texas
No. 05-14-00402-CV V. Trial Court Cause No. 380-1387-2009 CV.
Opinion delivered by Justice Myers.
ROBERT DAVIS, Appellee Justices Bridges and Lang-Miers,
participating.
In accordance with this Court’s opinion of this date, the appeal is DISMISSED.
It is ORDERED that appellee ROBERT DAVIS recover his costs of this appeal from
appellant LOWELL MERRITT.
Judgment entered this 19th day of November, 2014.
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