Travel Music of San Antonio, Inc. v. Cheryl Mott, et al.--Appeal from 285th Judicial District Court of Bexar County

No. 04-01-00086-CV
TRAVEL MUSIC OF SAN ANTONIO, INC.,
Appellant
v.
Cherie MOTT, et. al,
Appellees
From the 150th Judicial District Court of Bexar County, Texas
Trial Court No. 98-CI-02886
Honorable Janet Littlejohn, Judge Presiding

PER CURIAM

Sitting: Phil Hardberger, Chief Justice

Alma L. L pez, Justice

Catherine Stone, Justice

Delivered and Filed: April 11, 2001

DISMISSED IN PART FOR LACK OF JURISDICTION

Appellee, John Douglas, has filed a plea to the jurisdiction claiming this court is without jurisdiction to entertain this appeal. From our initial review of the record, it appeared that appellant, Travel Music of San Antonio, Inc., failed to timely file its notice of appeal. Therefore, on March 6, 2001, we ordered appellant to show cause in writing by March 21, 2001, why this appeal should not be dismissed for lack of jurisdiction. Appellant has responded that the orders appealed from were signed on October 31, 2000, that appellant timely mailed its Motion for New Trial to the Bexar County District Clerk on November 30, 2000, and that the Motion was filed-stamped by the Bexar County District Clerk on December 4, 2000. A supplemental clerk's record containing a copy of appellant's Motion for New Trial has been filed. The Motion for New Trial was timely filed pursuant to Tex. R. Civ. P. 5. Accordingly, appellant's notice of appeal, filed within ninety days of the underlying orders, was timely filed. See Tex. R. App. P. 26.1(a)(1) (providing for extended appellate deadline when motion for new trial is timely filed).

Although appellant timely filed its notice of appeal, a question remains concerning this court's jurisdiction. Appellant is attempting to appeal two orders: a turnover order and a post-judgment discovery order. Turnover orders are final, appealable orders and are not subject to the accelerated appellate timetables that are applicable to interlocutory orders. Burns v. Miller, Hiersche, Martens & Hayward, P.C., 909 S.W.2d 505, 506 (Tex. 1995). Appellant has timely perfected its appeal of the turnover order. However, appellant is also attempting to appeal a post-judgment discovery order. An order entered to aid in the enforcement of a judgment is generally not appealable. Rather, "mandamus is the proper form to obtain a review of a trial court's post judgment discovery order." See In re Amaya, 34 S.W.3d 354, 356 (Tex. App.-Waco 2001, no pet. h.).

Accordingly, appellee's plea to the jurisdiction is denied in part and granted in part. The appeal of the turnover order is retained on the docket. Appellant's brief regarding the appeal of the turnover order is to be filed in this court on or before April 30, 2001. Appellant's appeal of the discovery order is dismissed for lack of jurisdiction. See Tex. R. App. P. 42.3(a). Costs of appeal are taxed against the party by whom incurred.

PER CURIUM

DO NOT PUBLISH