Marcus Jarrod Payne v. Stacy Eley (Payne)

• Court: Court of Appeals of Texas
• Decided: May 11, 2021
• Docket: 05-21-00007-CV
• Status: Published

Opinion

DISMISS and Opinion Filed May 11, 2021

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00007-CV

MARCUS JARROD PAYNE, Appellant V. STACY ELEY (PAYNE), Appellee

On Appeal from the 303rd Judicial District Court Dallas County, Texas Trial Court Cause No. DF-20-00663

MEMORANDUM OPINION Before Justices Schenck, Reichek, and Carlyle Opinion by Justice Schenck

This appeal follows the trial court’s memorandum ruling awarding appellee

attorney’s fees, the sole issue remaining after appellant nonsuited his claims.

Because the ruling was not signed by the trial judge, it appeared it did not comply

with the requisites of a final judgment and did not trigger the appellate deadlines.

See TEX. R. APP. P. 26.1 (time for filing notice of appeal in civil cases runs from date

judgment is signed); In re Cas Cos., LP, 422 S.W.3d 871, 875 (Tex. App.—Corpus

Christi 2014, orig. proceeding) (memorandum ruling will be accorded final

judgment status if, among other requisites, it is signed by the trial judge). At our request, the parties filed letter briefs addressing our concern. Both

acknowledge a final judgment has not yet been signed. Appellant urges we

nonetheless allow the appeal to proceed because he believes “the trial court is

suspending its order to negatively affect [his] . . . ability to perfect an appeal.” An

appellate court, however, cannot create jurisdiction where jurisdiction does not exist.

See Texaco, Inc. v. Shouse, 877 S.W.2d 8, 11 (Tex. App.—El Paso 1994, no writ).

Accordingly, we dismiss the appeal. See TEX. R. APP. P. 42.3(a).

/David J. Schenck/ DAVID J. SCHENCK JUSTICE

210007F.P05

–2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

MARCUS JARROD PAYNE, On Appeal from the 303rd Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. DF-20-00663. No. 05-21-00007-CV V. Opinion delivered by Justice Schenck, Justices Reichek and STACY ELEY (PAYNE), Appellee Carlyle participating.

In accordance with this Court’s opinion of this date, we DISMISS the appeal.

Judgment entered May 11, 2021

–3–