DMW, LLC Do's Vision Investment, LLC and Do Van Nguyen and Maria Ngo v. Dimensional MacHine Works, LLC ( 2016 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER AND NOTICE OF INTENT TO DISMISS FOR WANT OF JURISDICTION
Appellate case name: DMW, LLC Do’s Vision Investment, LLC and Do Van
Nguyen and Maria Ngo v. Dimensional Machine Works, LLC
Appellate case number: 01-16-00757-CV
Trial court case number: 2016-47447
Trial court: 151st District Court of Harris County
On September 21, 2016, the appellants, DMW, LLC Do’s Vision Investment, LLC
and Do Van Nguyen and Maria Ngo, attempted to file a notice of appeal from the
interlocutory order granting motion to compel, signed by the trial court on September 20,
2016. On September 29, 2016, appellants filed a motion “to include unfiled documents
in the Clerk’s Record on Appeal” in this Court requesting leave to file discovery
documents exchanged between counsel relevant to this appeal, such as notices of
deposition and responses to Rule 194 requests for disclosure.
On September 30, 2016, the appellee, Dimensional Machine Works, LLC
(“Dimensional”), filed a motion to dismiss this appeal for want of jurisdiction because
there is no statutory basis for this interlocutory appeal of the order granting the motion to
compel. Alternatively, because appellants state that their “notice of appeal
(Tex.R.App.P. 25.1) by WRIT OF MANDAMUS,” if appellants requests conversion of
this appeal to an original proceeding and this Court grants that request, Dimensional
seeks an order requiring appellants to comply with Rule 52.
Although the reporter’s record has been filed, the clerk’s record has yet to be filed
in this Court. Thus, after a preliminary review of the trial court’s order granting
Dimensional’s motion to compel, which is attached to the notice of appeal, this Court
notifies appellants that their appeal may be dismissed for want of jurisdiction. See TEX.
R. APP. P. 42.3(a). Appellants appear to be attempting to appeal from a non-appealable
interlocutory order. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001).
This Court generally has jurisdiction over appeals from final judgments and
interlocutory orders authorized by statute as appealable. See TEX. CIV. PRAC. & REM.
CODE ANN. §§ 51.012, 51.014(a)(1)-(13) (West Supp. 2016); see also CMH Homes v.
Perez, 340 S.W.3d 444, 447-48 (Tex. 2011) (“Unless a statute authorizes an interlocutory
appeal, appellate courts generally only have jurisdiction over appeals from final
judgments.”); Lehmann, 39 S.W.3d at 200. The trial court’s September 20, 2016 order
granting Dimensional’s motion to compel, which requires, among other things, appellants
to produce all documents withheld on any privilege log involving Maria Ngo, appears to
be a non-appealable interlocutory order because it does not dispose of all parties and
claims, making it final, and it does not fall under any of the categories of orders that are
authorized as appealable. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(1)-(13);
see also Lehmann, 39 S.W.3d at 200.
Accordingly, appellants’ motion “to include unfiled documents in the Clerk’s
Record on Appeal” is DENIED. Also, unless appellants file a response to this
notice/appellees’ motion providing a detailed explanation, citing relevant portions of the
record, statutes, rules, or case law to show that this Court has jurisdiction over the notice
of appeal, the Court may dismiss this appeal for lack of jurisdiction without further
notice. See TEX. R. APP. P. 42.3(a), (c), 43.2(f).
In addition, although appellants stated in their notice of appeal that this was an
appeal “by WRIT OF MANDAMUS,” their notice of appeal does not comply with the
mandamus petition requirements of Rule 52. See TEX. R. APP. P. 52.1, 52.3. Thus, to the
extent appellants intended that their notice of appeal be construed as a mandamus
petition, appellants’ counsel is directed to file a motion with the Clerk of this Court
within 10 days of the date of the Order to designate this appeal as an original proceeding
and requesting an extension of time to file a mandamus petition and record that comply
with Rule 52. See TEX. R. APP. P. 52.1, 52.3, 52.7(a); see also CMH Homes, 340 S.W.3d
at 453–54 (treating appeal as mandamus petition “because the appellant specifically
requested mandamus relief” in the alternative). Any response/motion must be filed
within 10 days of the date of this notice or this Court may dismiss this appeal. See
TEX. R. APP. P. 42.3(a), (c).
It is so ORDERED.
Judge’s signature: /s/ Laura Carter Higley
 Acting individually
Date: October 6, 2016