No second appeal of small-claims court judgment

Appeal from county court to court of appeals not authorized where county court proceeding was appeal from small-claims court judgment.

J. D. Gulley v. Philip Sueoka, No. (Tex.App.- Austin, May 8, 2008)( (DWOJ, lack of appellate jurisdiction) Before Justices Patterson, Puryear and Henson. J. D. Gulley v. Philip Sueoka--Appeal from County Court at Law No. 3 of Bell County

M E M O R A N D U M O P I N I O N

This is an appeal from the county court at law's judgment declaring that the breach-of-contract claim brought by J.D. Gulley was barred by res judicata. However, because it is clear from the record that Gulley's suit originated in small claims court, we have no jurisdiction to hear Gulley's appeal and must therefore dismiss for want of jurisdiction. See Tex. Gov't Code Ann. § 28.053(d) (West 2004); Tex. R. App. P. 60.2(a).

DISCUSSION

Gulley represents in his appellate brief that his initial suit was heard in justice court
and appealed to the county court at law. However, the clerk's record establishes that Gulley's original petition was filed, and judgment was entered, in Small Claims Court of Precinct 1, Bell County, Texas, which had jurisdiction over the suit. See Tex. Gov't Code Ann. § 28.003 (West Supp. 2007).

The judgment is captioned "IN THE SMALL CLAIMS COURT" and bears the seal of the small claims court, see id. § 28.006 (West 2004), and Gulley's petition substantially complies with the form for actions in small claims court. Id. § 28.012.

Under the government code, a dissatisfied party may appeal the judgment of the small claims court to the county court or county court at law, id. § 28.052(a) (West Supp. 2007), but the judgment on appeal is "final." Id. § 28.053(d) (West 2004). The Texas Supreme Court has interpreted this provision to mean that the judgment of a county court or county court at law is "final and not appealable." Sultan v. Mathew, 178 S.W.3d 747, 751 (Tex. 2005) (emphasis added). Thus, "under section 28.053(d) of the Texas Government Code, the courts of appeals lack jurisdiction over cases originally filed in the small claims court." Id. at 752; see also Lister v. Walters, No. 06-07-00137-CV, 2008 Tex. App. LEXIS 1351, at *4-5 (Tex. App.--Texarkana Feb. 22, 2008, no pet. h.) (holding that court lacked jurisdiction to consider appeal, noting that although several documents in record were captioned "In Justice Court" and several contained seal of justice court, plaintiff's petition was captioned "In Small Claims Court" and petition complied with form for actions in small claims court).
Accordingly, we dismiss the appeal for want of jurisdiction.
__________________________________________
Diane Henson, Justice
Before Justices Patterson, Puryear and Henson
Dismissed for Want of Jurisdiction
Filed: May 9, 2008

Kim v. Austin Community College (Tex.App.- Austin, Jul. 6, 2007)

Order Granting Motion for Continuance Not Final and Not Appealable

Koo-Hyun Kim vs. Austin Comm'ty College (Tex. App.- Austin, July 6, 2007)(Puryear)(unauthorized interlocutory appeal dismissed for lack of jurisdiction, DWOJ)

DISMISSED FOR WANT OF JURISDICTION: Opinion by Justice Puryear
Before Chief Justice Law, Justices Puryear and Henson

John Koo-Hyun Kim v. Austin Community College; Stephen B. Kinslow, as President of Austin Community College; Greg Abbott, Attorney General of Texas; Representative Jaime Valdez; and Myra McDaniel, as Attorney for Austin Community College
Appeal from 345th District Court of Travis County

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GN-07-000586, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Appellant John Koo-Hyun Kim filed a notice of appeal, apparently seeking to appeal from the trial court's order granting appellees' motions for a continuance of a June 4, 2007 trial setting. Because we lack jurisdiction over this interlocutory appeal, we dismiss the cause for want of jurisdiction. See Tex. R. App. P. 42.3(a).

Generally, courts of appeals may only exercise jurisdiction over appeals from final orders or judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) ("A judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record, except as necessary to carry out the decree."). There are certain statutory exceptions to this rule, which explicitly allow interlocutory appeals from non-final orders. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (West Supp. 2006) (listing permissible interlocutory appeals).

An appeal from a trial court's granting of a motion for continuance and delay of a trial setting may not be reviewed by interlocutory appeal. See In re A.J.L., No. 02-04-00050-CV, 2004 Tex. App. LEXIS 4993, at *1 (Tex. App.--Fort Worth, June 3, 2004, no pet) (mem. op.); Lovall v. Yen, No. 14-01-01108-CV, 2002 Tex. App. LEXIS 354, at *1-3 (Tex. App.--Houston [14th Dist.] Jan. 17, 2002, no pet.) (not designated for publication).

Appellant seeks to appeal from the trial court's order granting a continuance to appellees. We may not consider this complaint in an interlocutory appeal. Therefore, we must dismiss this cause for want of jurisdiction. See Tex. R. App. P. 42.3(a).
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Henson
Dismissed for Want of Jurisdiction
Filed: July 6, 2007