Lisha Ebrahim v. Middlebury Properties, II, L.P. ( 2008 )

Opinion issued March 6, 2008

In The

Court of Appeals

For The

First District of Texas

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NO. 01-06-01175-CV

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LISHA EBRAHIM, Appellant

V.

MIDDLEBURY PROPERTIES II, L.L.P., Appellee

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On Appeal from the 55th District Court

Harris County, Texas

Trial Court Cause No. 2006-78936

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MEMORANDUM OPINION

This is an appeal from the trial court's December 18, 2006 sua sponte dismissal order.

Appellant Lisha Ebrahim sued appellee Middlebury Properties II, L.L.P. for alleged violations of the Property Code regarding closing rental premises and the Texas Fair Housing Act in connection with Middlebury's attempt to close the mobile home part where Ebrahim resided. See Tex. Prop. Code Ann. §§ 92.055, 301.001-.171 (Vernon 2007). Ebrahim sought injunctive relief and civil penalties under the Property Code.

At the hearing on Ebrahim's request for a temporary restraining order, the trial court dismissed the case for lack of subject-matter jurisdiction. There is no court reporter's record of the hearing and the trial court's order merely states, "the Court is of the opinion that it does not possess subject matter jurisdiction over the claims and causes of action asserted by Plaintiff." Ebrahim did not file a motion for new trial or any other postjudgment motion contesting the trial court's dismissal.

We hold that Ebrahim has not preserved her complaint for appellate review by presenting to this Court a record that showed she objected to the dismissal. See Tex. R. App. P. 33.1(a). This is not a case in which the trial court committed fundamental error by exercising subject-matter jurisdiction when it had none. See Bird v. Kornman, 152 S.W.3d 154, 160 (Tex. App.--Dallas 2004, pet. denied). Even if the trial court's dismissal order were erroneous, the order is not void for lack of jurisdiction because the trial court had jurisdiction to determine its jurisdiction. See id. at 161. Accordingly, Texas Rule of Appellate Procedure 33.1(a) required Ebrahim

to preserve the alleged error in a post judgment motion. See id. at 161. Ignoring Rule 33.1(a) would presume that the silent record does not support the trial court's judgment. Although whether the trial court possessed subject-matter jurisdiction over this case is a question of law, it is possible that a reporter's record would have demonstrated invited error on Ebrahim's part, even if we were to assume the dismissal was erroneous.

We affirm the trial court's dismissal order.

Sam Nuchia

Justice

Panel consists of Justices Nuchia, Hanks, and Higley.