Dov K. Avni v. Harris County

Opinion issued August 8, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00998-CV
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DOV K. AVNI, Appellant
V.
HARRIS COUNTY ET AL., Appellees
On Appeal from the 127th District Court
Harris County, Texas
Trial Court Case No. 2006-80346
MEMORANDUM OPINION
Appellees have filed a motion to dismiss this appeal for want of jurisdiction.
More than 10 days have passed since the filing of the motion and appellant failed to
adequately respond. See TEX. R. APP. P. 10.3(a). We grant the motion and dismiss
the appeal.
Appellant’s previous appeal from the final judgment in the underlying trial
court case was dismissed by this Court for want of prosecution on November 17,
2018, and our mandate issued on May 14, 2018. See Avni v. Harris Cty., No. 01-16-
00894-CV, 2017 WL 5353576, at *1 (Tex. App.—Houston [1st Dist.] Nov. 14,
2017, no pet.). The present appeal was docketed when appellant, on November 11,
2018, filed another notice of appeal in the underlying case stating that he “desires to
re-appeal to 1st Court Appeal, that allegedly dismissed his appeal under 01-16-
00894 cv for ‘want of prosecution.” In his notice of appeal and a subsequent
amended notice, appellant asserts that he seeks to appeal an August 3, 2018 order of
the trial court denying his motion to set aside the court’s judgment.
Appellant appears to be attempting either (1) a second appeal from the same
judgment in the underlying case or (2) an appeal from the denial of a motion to
reconsider or set aside the judgment. To the extent that appellant is attempting a
second appeal after his previous appeal from the judgment was dismissed and our
mandate issued, we lack jurisdiction over the appeal. See TEX. R. APP. P. 19.1
(stating, in pertinent part, appellate court’s plenary power over its judgment expires
30 days after court overrules all timely filed motions for rehearing); Minnfee v.
Proyor, No. 01–12–00943–CV, 2013 WL 709254, at *1 (Tex. App.—Houston [1st
Dist.] 2013, no pet.) (mem. op.) (“Appellant is not entitled to a second appeal from
the trial court’s judgment dismissing the case.”).
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To the extent that appellant seeks to appeal the trial court’s August 3, 2018
order denying his motion to reconsider or set aside, such orders are not
independently appealable. See Digges v. Knowledge Alliance, Inc., 176 S.W.3d 463,
464 (Tex. App.—Houston [1st Dist.] 2004, no pet.); CTL/Thompson Texas, LLC v.
Morrison Homes, 337 S.W.3d 437, 443 (Tex. App.—Fort Worth 2011, pet. denied).
The August 3, 2018 order is not a final judgment. We have jurisdiction to hear an
interlocutory appeal only if authorized by statute. See TEX. CIV. PRAC. & REM. CODE
§ 51.014; Stary v. DeBord, 967 S.W.2d 352, 352–53 (Tex. 1998). The August 3,
2018 order denying reconsideration is not one for which an interlocutory appeal is
statutorily authorized.
Accordingly, we dismiss the appeal for want of jurisdiction. We dismiss any
pending motions as moot.
PER CURIAM
Panel consists of Justices Keyes, Kelly, and Goodman
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