in the Interest of M.G.T., a Child ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00340-CV
IN THE INTEREST OF M.G.T., A
CHILD
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FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant Allen Dale Newman, acting pro se, filed a timely notice of appeal
from the trial court’s June 28, 2010 “Final Order In Suit Affecting Parent-Child
Relationship.” The trial court subsequently granted a partial new trial on August
26, 2010, while it still had plenary jurisdiction over the case. See Tex. R. Civ. P.
329b(e). On October 6, 2010, we informed the parties that we were concerned
that we might not have jurisdiction over this appeal because a final judgment had
1
See Tex. R. App. P. 47.4.
not been entered in the case and that the appeal could be dismissed for want of
jurisdiction unless any party desiring to continue the appeal filed a response on
or before October 18, 2010, showing grounds for continuing the appeal.
On October 18, 2010, Newman filed a response that did not show grounds
for continuing the appeal but instead sought this court’s instruction “on how to
remedy these matters,” i.e., the trial court’s order granting a partial new trial.
That same day the trial court set a hearing for October 28, 2010 on
“Respondent’s Motion to Reconsider Motion for New Trial, or, in the Alternative,
Motion to Set Aside Judgment and/or Dismiss.” On October 28, 2010, a “Final
Trial Notification” set the case for a final trial on December 6, 2010.
On November 15, 2010, this court sent a letter to the parties informing
them that this court had determined that it had jurisdiction. No final trial was held
on December 6, 2010. Thereafter, on December 7, 2010, this court sent a letter
to the parties informing them that the November 15 letter was sent in error and
that the jurisdictional issue remained pending.
On January 6, 2011, we received a letter from Newman stating that he was
filing the letter in lieu of a writ of mandamus and motion to stay proceedings in
trial court and that his letter required immediate attention. We have carefully
reviewed Newman’s letter and attached exhibits, which attempt to respond to our
December 7 letter even though no response was requested from the parties in
that letter. Newman initially argues that because he was the only party to
respond to our initial jurisdiction letter, all other parties have waived their rights to
2
question jurisdiction. Newman’s argument fails because parties cannot waive
jurisdiction. See Walker Sand, Inc. v. Baytown Asphalt Materials, Ltd., 95
S.W.3d 511, 514 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (explaining that
appellate courts must determine question of jurisdiction, even sua sponte, and
that lack of jurisdiction may not be ignored simply because parties do not raise
it); see also New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679
(Tex. 1990) (holding that appellate court’s assumption of appellate jurisdiction
over interlocutory order when not expressly authorized to do so by statute is
jurisdictional fundamental error that supreme court will correct even though
neither party asserts it).
Newman also argues that a partial trial would not be helpful and that an
entire new trial is needed. Newman’s letter raises other issues related to the
underlying divorce, none of which this court may address absent a final judgment
from the trial court. Newman’s letter does not address the central concern of this
court, which is that as of January 26, 2011, no other date has been set for a final
trial, nor has a final judgment been signed. Because there is no final judgment,
we dismiss the appeal for want of jurisdiction.2 See Tex. R. App. P. 42.3(a),
43.2(f).
PER CURIAM
2
Our disposition of this appeal does not bar Newman from bringing a future
appeal or from raising the issues he has posed in his letter, if he feels the need,
once a final judgment has been signed.
3
PANEL: WALKER, MCCOY, and MEIER, JJ.
DELIVERED: January 27, 2011
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