Datta Dougherty v. BSI Financial Services, Inc. ( 2020 )

Opinion issued September 1, 2020
In The
Court of Appeals
For The
First District of Texas
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NO. 01-20-00001-CV
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DATTA TOSHIHIRO DOUGHERTY, Appellant
V.
BSI FINANCIAL SERVICES, INC., Appellee
On Appeal from the 269th District Court
Harris County, Texas
Trial Court Case No. 2019-80383
MEMORANDUM OPINION
Appellant, Datta Toshihiro Dougherty, filed a notice of appeal from the trial
court’s December 2, 2019 order granting the plea in abatement of appellee, BSI
Financial Services, Inc. In its order, the trial court also abated the trial court
proceedings because appellant had previously filed suit based on the same conduct,
and against the same parties, which was currently pending in the United States
District Court for the Southern District of Texas.1
This Court generally has jurisdiction only over appeals from final judgments
and specific interlocutory orders that the Legislature has designated as appealable
orders. See CMH Homes v. Perez, 340 S.W.3d 444, 447–48 (Tex. 2011); see also
TEX. CIV. PRAC. & REM. CODE ANN. § 51.014. Here, appellant has attempted to
appeal from the trial court’s December 2, 2019 interlocutory order granting
appellee’s plea in abatement and abating the case. See Harper v. Welchem, Inc., 799
S.W.2d 492, 495–96 (Tex. App.—Houston [14th Dist.] 1990, no writ) (“An order
that merely sustains a plea in abatement is interlocutory and not appealable.”); see
also Rakowitz v. Pittman, No. 04-17-00380-CV, 2017 WL 3495130, at *1 (Tex.
App.—San Antonio Aug. 16, 2017, no pet.) (mem. op.) (order abating claims “is an
interlocutory order”). There is no statute authorizing an interlocutory appeal from
the trial court’s December 2, 2019 order. See Harper, 799 S.W.2d at 496
(“Sustaining a plea in abatement is not appealable by statute.”); see also TEX. CIV.
PRAC. & REM. CODE ANN. § 51.014; Rakowitz, 2017 WL 3495130, at *1; Yu v. Neely,
1
Appellant previously filed suit, captioned Datta Toshihiro Dougherty v. BSI
Financial Services, Inc. and U.S. Bank, N.A., Cause No. 2019-62462, in the 451st
District Court of Harris County, Texas. Defendants in that cause of action removed
the case to the Southern District of Texas, Houston Division, Civil Action H-19-
3037.
2
No. 03-01-00179-CV, 2001 WL 578808, at *1 (Tex. App.—Austin May 31, 2001,
no pet.) (not designated for publication).
On July 28, 2020, this Court notified appellant that we lack jurisdiction and
directed appellant that, unless a response was provided within ten days, in writing,
demonstrating that this Court has jurisdiction of the appeal, the appeal would be
dismissed for lack of jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f).
The Court’s July 28, 2020 notice further advised appellant that the record
indicated that her notice of appeal may not have been timely filed. Because
appellant’s appeal is of an interlocutory order, any notice of appeal was due within
twenty days of the date of the order being appealed. See TEX. R. APP. P. 26.1(b),
28.1 (designating interlocutory appeals as “accelerated”). Because the trial court’s
order granting appellee’s plea in abatement, and abating the case, was signed on
December 2, 2019, appellant’s notice of appeal was due on December 23, 2019.
Appellant’s notice of appeal was not filed until December 30, 2019. Without a
timely filed notice of appeal, this Court lacks jurisdiction over the appeal. See TEX.
R. APP. P. 25.1.
Appellant failed to respond to the Court’s July 28, 2020 notice. Accordingly,
the appeal is dismissed for lack of jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f).
All pending motions are dismissed as moot.
PER CURIAM
3
Panel consists of Justices Keyes, Lloyd, and Landau.
4