Opinion
04-23-00863-CV
10-05-2023
MILBERGER LANDSCAPING, INC., Appellant v. THE CITY OF SAN ANTONIO, acting by and through the San Antonio Water System, Appellee
From the Probate Court No 1, Bexar County, Texas Trial Court No. 2020-ED-0021 Honorable Oscar J. Kazen, Judge Presiding
ORDER
REBECA C. MARTINEZ, CHIEF JUSTICE
On September 6, 2023, the trial court signed an "Amended Order on Plaintiff's Motion for Permissive Appeal Pursuant to Tex.R.Civ.P. 168 from the Court's Order Granting Partial Summary Judgment." This order references a September 19, 2022, hearing on appellant's trial court motion for permissive interlocutory appeal and, the order states that it replaces an "Amended Order signed on November 30, 2022." Appellant has not provided us with the Amended Order signed on November 30, 2022, and neither party states when the trial court first permitted an interlocutory appeal pursuant to Rule 168.
On September 21, 2023, appellant filed, in this court, a petition for a permissive appeal from the trial court's September 6, 2023 order. Rule 28.3(c) of the Texas Rules of Appellate Procedure provides:
The petition must be filed within 15 days after the order to be appealed is signed. If the order is amended by the trial court, either on its own or in response to a party's motion, to include the court's permission to appeal, the time to petition the court of appeals runs from the date the amended order is signed.Tex. R. App. P. 28.3(c). The time to file the petition may be extended by the court of appeals if the party files the petition within fifteen days after the deadline and files a motion complying with Rule 10.5(b). See id. R. 28.3(d). An untimely petition cannot invoke an appellate court's jurisdiction. See Progressive Cnty. Mutual Ins. Co. v. McCormack, No. 04-21-00001-CV, 2021 WL 186675, at *2 (Tex. App.-San Antonio Jan. 20, 2021, no pet.) (mem. op.) (per curiam).
In order to review our jurisdiction, we ORDER appellant to cause a clerk's record to be filed in this court on or before October 25, 2023 that includes: (1) the trial court's docket sheet; (2) all orders and amended orders relating to the grant of partial summary judgment that is the subject of this attempted appeal; and (3) all orders and amended orders relating to the trial court's permission to appeal such partial summary judgment.
Appellant's petition for permissive appeal remains pending before the court.