Tucker, Lawrence v. Macias, Francisco--Appeal from 327th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

LAWRENCE JOSEPH TUCKER, )

) No. 08-02-00003-CV

Appellant, )

) Appeal from the

v. )

) 327th District Court

FRANCISCO F. MACIAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 98-296)

)

MEMORANDUM OPINION

This is an attempted appeal of a trial court=s denial of Appellant=s motion to amend his original petition. We dismiss the appeal for want of jurisdiction.

In 1998, Appellant, Lawrence Joseph Tucker, filed suit against Appellee, Francisco F. Macias, alleging attorney malpractice.[1] On January 16, 2001, Appellant filed a motion to amend his original petition. On November 7, 2001, the trial court issued an order denying amendment or supplementation of the petition. Appellant then filed notice of appeal of the trial court=s order with this Court.

Appellant asserts two issues in his brief. First, he contends the trial court abused its discretion by denying the motion to amend his petition. Second, Appellant argues the trial court erred by failing to rule on or grant his motion for appointment of counsel.

Appellate jurisdiction generally exists only in cases in which a final judgment has been rendered that disposes of all issues and parties in the case. Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992)(orig. proceeding); Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex. 1986)(orig. proceeding). However, the Texas Legislature has authorized the appeal of several types of interlocutory orders, none of which are at issue in this case. See, e.g., Tex.Civ.Prac.&Rem.Code Ann. ' 15.003(c)(Vernon 2002); Tex.Civ.Prac.&Rem.Code Ann. ' 51.014 (Vernon Supp. 2003); Tex.Civ.Prac.&Rem.Code Ann. ' 171.098 (Vernon Supp. 2003); Tex.Gov=t Code Ann. ' 1205.068 (Vernon 2000). Moreover, an appellate court commits fundamental error when it assumes jurisdiction over an interlocutory appeal that is not expressly authorized by statute. See New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex. 1990); Jani-King of Memphis, Inc. v. Yates, 965 S.W.2d 665, 666 (Tex.App.--Houston [14th Dist.] 1998, no pet.).

An appellate court may look to the record in the case to determine whether an order disposes of all pending claims and parties. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205-06 (Tex. 2001). The record now before us does not contain a final judgment or an appealable interlocutory order. See Tex.Civ.Prac.&Rem.Code Ann. ' 51.014; Tipps, 842 S.W.2d at 272. The trial court=s failure to rule or rule favorably on Appellant=s motion for appointment of counsel is not appealable at this time. Furthermore, because the order denying amendment of Appellant=s pleadings is also neither a final judgment nor an appealable interlocutory order, we have no jurisdiction over this appeal.

 Accordingly, on the Court=s own motion,[2] we dismiss this appeal for want of jurisdiction. SeeTex.R.App.P. 42.3(a).

June 12, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

[1] Appellant brought suit as a pro se litigant and also appears pro se before us on appeal.

[2] Although Appellee failed to file a formal motion to dismiss for want of jurisdiction, he does include a section in his brief urging the Court to dismiss on this basis.