Jimmy Diaz v. Robert T. Rice and Savannah Robinson

Dismissed and Memorandum Opinion filed September 4, 2014.

In The

Fourteenth Court of Appeals

NO. 14-14-00517-CV
NO. 14-14-00622-CV

JIMMY DIAZ, Appellant
V.

ROBERT T. RICE AND SAVANNAH ROBINSON, Appellees

On Appeal from the 23rd District Court
Brazoria County, Texas
Trial Court Cause Nos. 67021 and 73543I

MEMORANDUM OPINION
Appellant, a pro se inmate, filed suit against the attorneys retained to
represent him in his criminal case and in a personal injury suit, and the attorneys
counterclaimed against appellant. The cases were consolidated in the court below.
No appealable order has been signed. Accordingly, we dismiss these appeals for
want of jurisdiction.

On March 13, 2014, appellant filed a notice of appeal in cause number
67021, and the appeal was docketed under our case number 14-14-00517-CV. On
June 19, 2014, appellant filed an amended notice of appeal, alleging the trial court
denied him due process. On July 15, 2014, appellant filed a notice of appeal in
cause number 735431, and the appeal was docketed under our case number 14-14-
00622-CV. Appellant’s notices of appeal do not identify a specific order or ruling
that he is attempting to appeal. Appellant also filed an affidavit of indigence. On
July 14, 2014, this court notified appellant that he is required to comply with
Chapter 14 of the Texas Civil Practice and Remedies Code governing inmate
litigation when an inmate claims an inability to pay costs. The requirements of
Chapter 14 apply when an inmate files an appeal. See Douglas v. Moffett, 418
S.W.3d 366, 399 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Appellant
responded, and filed an affidavit detailing his previous filings and a certified copy
of his inmate trust account statement, as requested in our July 14, 2014 notice.

Appellees (the attorneys) moved to dismiss the appeal docketed in case
number 14-14-00517-CV, asserting that this court lacks jurisdiction because no
final, appealable order has been signed. According to the attorneys, the only ruling
that the trial court has made is to order the underlying cases consolidated.1

Because the records filed with this court reflect the causes were consolidated
below, we have consolidated these appeals. On August 13, 2014, this court notified
appellant that both appeals were subject to dismissal for want of jurisdiction unless
appellant filed a response demonstrating this court’s jurisdiction on or before
August 25, 2014. On August 15, 2014, appellant filed an opposition to the
attorneys’ motion to dismiss. He asserted that this is not an interlocutory appeal,
and this court has subject matter jurisdiction under the Fourteenth Amendment to

1
The records do not contain an order of consolidation; the ruling is reflected by a docket
entry and a letter from the trial court to appellant.

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the United States Constitution. He also asserted we have jurisdiction to consider
his Deceptive Trade Practices-Consumer Protection Act claim. In addition, he filed
a brief in which he made the same jurisdictional arguments. Although he
complained in his brief about the trial court’s actions below, appellant has not
identified an order or judgment that is the subject of this attempted appeal.
Appellant has filed several motions and other correspondence with the clerk of this
court, but he has not demonstrated that this court has jurisdiction to consider his
appeal.2

We have carefully reviewed the clerk’s records in these appeals. The records
reflect that on September 26, 2013, the attorneys moved for summary judgment,
and appellant responded in opposition. The records do not contain an order ruling
on the defendants’ motion for summary judgment, a final judgment, or any other
appealable order.

It is well settled that appellate courts have jurisdiction over final judgments,
and such interlocutory orders that the Legislature deems appealable by statute. See
Tex. Civ. Prac. & Rem. Code §§ 51.012, 51.014; see also Lehmann v. Har–Con
Corp., 39 S.W.3d 191, 195 (Tex. 2001). No statute authorizes the interlocutory
appeal of an order to consolidate separate lawsuits. Carter v. Sun City Towing &
Recovery, L.P., 225 S.W.3d 161, 162 (Tex. App.—El Paso 2005, no pet.).
Therefore, the trial court’s ruling consolidating the underlying cases is not an
appealable interlocutory order. See Carter v. Alliance Leasing, Inc., No. 08-05-
00294-CV, 2005 WL 3326843 (Tex. App.—El Paso Dec. 8, 2005, no pet.) (mem.
op.) (dismissing attempted appeal, holding a consolidation order is not a final
2
Appellant has filed a motion for appointment of counsel, a “Motion for Misjointed [sic]
and Nonjoinder Separate Consolidated Cases,” a response to a petition for declaratory judgment,
an amended motion to proceed in forma pauperis on appeal, a motion to waive filing fees, a
motion to amend his notice of appeal, and a motion for a hearing. Because of our disposition of
this appeal, these motions are dismissed as moot.

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judgment and is not an appealable order under Section 51.014).

The records reflect that the trial court has not ruled on appellant’s claims or
the attorneys’ motion for summary judgment. This court does not have jurisdiction
unless the trial court has first signed a judgment or appealable order ruling on the
issues raised by the parties in their pleadings in the court below.

Accordingly, the appeals are ordered dismissed.

PER CURIAM

Panel consists of Justices Boyce, Jamison, and Donovan.

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