Farith Talavera Silwany v. JJLJ Operating, LLC D/B/A Jimmy Joes Texas Kitchen and Bar and Patrick Lindsey

Appeal Dismissed and Memorandum Opinion filed July 30, 2024

In The

Fourteenth Court of Appeals

NO. 14-24-00403-CV

FARITH TALAVERA SILWANY, Appellant
V.
JJLJ OPERATING, LLC D/B/A JIMMY JOES TEXAS KITCHEN AND
BAR AND PATRICK LINDSEY, Appellees

On Appeal from the 239th District Court
Brazoria County, Texas
Trial Court Cause No. 125641-CV

MEMORANDUM OPINION

This is an attempted interlocutory appeal of the trial court’s order granting
appellees’ motion for a ruling under Rule 166(g) of the Texas Rules of Civil
Procedure. See Tex. R. Civ. P. 166(g). By that ruling, the trial court dismissed
appellee Patrick Lindsey from the case, leaving appellant’s claims against the
remaining defendants unresolved. When orders do not dispose of all pending
parties and claims, the orders remain interlocutory and unappealable until final
judgment is signed unless a statutory exception applies. Bally Total Fitness Corp.
v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001); Jack B. Anglin Co., Inc. v. Tipps, 842
S.W.2d 266, 272 (Tex. 1992) (orig. proceeding). There is no statutory exception
allowing for an interlocutory appeal of a trial court’s ruling on a motion brought
pursuant to Rule 166(g).

Because there is no final judgment or appealable order in our record, the
clerk of this court transmitted notification to the parties of this court’s intention to
dismiss the appeal for lack of jurisdiction unless appellant filed a response
demonstrating grounds for continuing the appeal within 10 days. In response,
appellant provided two arguments for maintaining this appeal: (1) Rule 166(g)
dispositive orders should be included within the scope of interlocutory appeals and
(2) in the alternative, this court should treat appellant’s brief as a petition for writ
of mandamus, citing to CMH Homes v. Perez, 340 S.W.3d 444, 452 (Tex. 2011).
As for appellant’s first argument, we decline to extend our appellate jurisdiction
absent legislative authorization. See id. at 447 (“We strictly apply statutes granting
interlocutory appeals because they are a narrow exception to the general rule that
interlocutory order are not immediately appealable.”); see Tipps, 842 S.W.2d at
272 (noting that appellate jurisdiction may not be enlarged absent legislative
mandate).

We may, however, exercise our mandamus jurisdiction when a party
specifically requests mandamus treatment of its appeal, as in this case. See Perez,
340 S.W.3d at 453-54. If this court were to exercise mandamus jurisdiction in this
matter, we would hold appellant to the same exacting standard to which we hold all
parties in original proceedings. Mandamus is an extraordinary remedy, available
only when the relator can show both that (1) the trial court clearly abused its
discretion; and (2) there is no adequate remedy by way of appeal. In re Ford Motor

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Co., 165 S.W.3d 315, 317 (Tex. 2005) (orig. proceeding); Walker v. Packer, 827
S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). Here, Appellant would have
an adequate remedy by way of an appeal of the final judgment in the underlying
matter. See JPMorgan Chase Bank, N.A. v. Orca Assets G.P., L.L.C., 546 S.W.3d
648, 653 (Tex. 2018) (noting that a Rule 166(g) order is akin to a summary
judgment and providing a standard of review on appeal). Accordingly, if this court
were to treat this appeal as a mandamus, appellant would be unsuccessful on the
merits. We dismiss the appeal for lack of jurisdiction.

PER CURIAM

Panel Consists of Chief Justice Christopher and Justices Spain and Poissant.

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