                            NUMBER 13-13-00103-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG
____________________________________________________________

PETER E. PRATT JR.,                                                         Appellant,

                                           v.

JAMES WAYNE,                                        Appellee.
____________________________________________________________

             On appeal from the 267th District Court
                   of Victoria County, Texas.
____________________________________________________________

                         MEMORANDUM OPINION
                 Before Justices Rodriguez, Garza, and Perkes
                      Memorandum Opinion Per Curiam

       Appellant, Peter E. Pratt, Jr. attempted to perfect an appeal from a sanction order

and a show cause order issued in trial court cause number 11-5-71651-C in the 267th

Judicial District Court of Victoria, County, Texas. We dismiss the appeal for want of

jurisdiction.
                                     I. BACKGROUND

       On February 19, 2013, appellant filed a notice of appeal regarding a show cause

order issued by the trial court on February 13, 2013. Upon review of the documents

before the Court, it appeared that there was no final, appealable judgment or other order

subject to appeal. On February 20, 2013, the Clerk of this Court notified appellant of this

defect so that steps could be taken to correct the defect, if it could be done. See TEX. R.

APP. P. 37.1, 42.3.   Appellant was advised that, if the defect was not corrected within

ten days from the date of receipt of the notice, the appeal would be dismissed for want of

jurisdiction.

       On February 25, 2013, appellee, James Wayne, filed a motion to dismiss the

appeal for lack of jurisdiction and for damages pursuant to Texas Rule of Appellate

Procedure 45. See id. R. 45. Appellee contends, inter alia, that the appeal is frivolous

and appellant is improperly using the automatic stay associated with this interlocutory

appeal to avoid sanctions and the show cause hearing.

       Appellant thereafter filed a consolidated response to this Court’s directive and to

appellee’s motion, and appellee filed a reply thereto. Appellant contends that he is filing

an interlocutory appeal regarding the trial court’s “implicit” denial of his plea to the

jurisdiction through orders issued on January 22, 2013, sanctioning appellant, and again

on February 13, 2013 issuing a show cause order against appellant. Appellant thus

asserts that he is raising an interlocutory appeal pursuant to Texas Civil Practice and

Remedies Code sections 51.014(d) (allowing interlocutory appeal by permission),

51.014(a)(8) (allowing interlocutory appeal of order granting or denying a plea to the

jurisdiction by a governmental unit), and 101.001 (concerning governmental liability

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claims under the Tort Claims Act). See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d)

(West Supp. 2011); § 51.014(a)(8) (West Supp. 2011); §§ 101.001-.109 (West 2011 &

Supp. 2011).

                                       II. ANALYSIS

       After examining and fully considering this matter, we conclude we lack jurisdiction

over this appeal. First, we address the substantive grounds asserted for jurisdiction over

the appeal. The record before the Court fails to reflect that the trial court granted

permission to appeal, so section 51.014(d) does not provide us with jurisdiction over this

appeal. See id. § 51.014(d). Moreover, the record before the Court fails to reflect that

this matter involves an appeal by a governmental unit under section 51.014(a)(8), or

otherwise implicates claims against the State under any section of the Tort Claims Act.

See id. §§ 51.014(a)(8); 101.001-.109. Appellant has failed to invoke any jurisdictional

basis for an interlocutory appeal

       Second, appellant asserts that he is appealing an “implicit” ruling that denies his

plea to the jurisdiction as a governmental unit.      In terms of appellate jurisdiction,

appellate courts only have jurisdiction to review final judgments and certain interlocutory

orders identified by statute. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.

2001). Our appellate jurisdiction over interlocutory appeals must be strictly construed as

a narrow exception to the general rule that only final judgments and orders are

appealable. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001).

Nevertheless, an appellate court may have jurisdiction over an interlocutory order which

does not expressly deny a plea to the jurisdiction if it implicitly denies the plea by

adjudicating the merits of a claim. See Thomas v. Long, 207 S.W.3d 334, 339–40 (Tex.

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2006) (holding that trial court's order ruling on merits of declaratory judgment claim

constituted implicit denial of plea to jurisdiction and was appealable under section

51.014(a)(8)).

          Appellant asserts that he is appealing the January 22, 2013 order sanctioning

appellant for failing to produce discovery and the February 13, 2013 order which directs

appellant to appear and show cause why he should not be adjudged in contempt of court.

These orders do not expressly or even implicitly concern the merits of the lawsuit or

jurisdiction, and accordingly, do not fall within the parameters of an interlocutory appeal

denying a plea to the jurisdiction. See City of Galveston v. Gray, 93 S.W.3d 587, 590

(Tex. App.—Houston 2002, pet. denied) (holding that order granting motion for

continuance and allowing discovery did not constitute implicit denial of plea to

jurisdiction); see also Tex. Dep't of Pub. Safety v. Salazar, No. 03-11-00206-CV, 2011

Tex. App. LEXIS 2921, at **1–3 (Tex. App.—Austin Apr. 19, 2011, no pet.) (mem. op. on

reh’g).

          Third, appellant’s notice of appeal asserts that he is appealing the show cause

order of February 13, 2013; however, his briefing asserts that he is also appealing the

January 22, 2013 order as an “implicit” ruling on the plea to the jurisdiction. Appeals

from interlocutory orders, when allowed by statute, are accelerated appeals. TEX. R.

APP. P. 28.1. In order to perfect an accelerated appeal of an interlocutory order, the

party is required to file a notice of appeal "within 20 days after the judgment or order is

signed." Id. at R. 26.1(b). The filing of a motion for new trial, request for findings of fact

and conclusions of law, or any other post-judgment motion, except for a motion for



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extension of time filed under Texas Rule of Appellate Procedure 26.3, "will not extend the

time to perfect an accelerated appeal." Id. at R. 26.3, 28.1(b).

       In the instant case, appellant did not file his notice of appeal until February 19,

2013, well beyond the deadline for appealing the January 22, 2013 order, and did not file

a motion for extension of time. See City of Houston v. Estate of Jones, 388 S.W.3d 663

(Tex. 2012) (calculating the deadline to appeal an interlocutory order from an order

denying a plea to the jurisdiction rather than a second order denying a subsequent plea

when the second plea raised the same grounds as the original plea).

       We are to construe the rules of appellate procedure reasonably and liberally so

that the right to appeal is not lost by imposing requirements not absolutely necessary to

effectuate the purpose of a rule. See In re R.D., 304 S.W.3d 368, 370 (Tex. 2010);

Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex. 1997).             Nevertheless, we are

prohibited from enlarging the scope of our jurisdiction by enlarging the time for perfecting

an appeal in a civil case in a manner not provided for by rule. See TEX. R. APP. P. 2; see

also Schwerin v. Nueces County Juvenile Bd., No. 13-10-00451-CV, 2012 Tex. App.

LEXIS 4381,at **7–8 (Tex. App.—Corpus Christi May 31, 2012, no pet.) (mem. op.).

Absent a timely filed notice of appeal from a final judgment or recognized interlocutory

order, we do not have jurisdiction over the appeal. In re K.A.F., 160 S.W.3d 923, 927

(Tex. 2005); see Lehmann, 39 S.W.3d at 195.

                                III. MOTION FOR SANCTIONS

       We next address appellee’s motion for sanctions against appellant. Appellee

asserts that this appeal is fraught with misrepresentations and is frivolous. We have

carefully examined these allegations and consider the matters alleged to be of some

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concern. Nevertheless, based on our review of the pleadings and record, we deny

appellee’s request for sanctions. We are confident that the trial court will take any steps

deemed necessary to ensure that the parties and their counsel strictly comply with their

ethical and professional obligations in further proceedings below.

                                     IV. CONCLUSION

       The Court, having considered the documents on file and the related briefing, is of

the opinion that the appeal should be dismissed for want of jurisdiction. Accordingly,

appellee’s motion to dismiss the appeal and for damages is granted in part and denied in

part. The motion is granted insofar as the appeal is dismissed for want of jurisdiction.

The motion is denied with regard to the requested sanctions. The appeal is dismissed

for want of jurisdiction. See TEX. R. APP. P. 42.3(a),(c).

                                                                      PER CURIAM

Delivered and filed the
21st day of March, 2013.




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