Michael Lewis and Michelle Shumate v. Michael Poray and Paige Poray A/N/F M.P., a Minor Child

• Court: Court of Appeals of Texas
• Decided: November 13, 2023
• Docket: 05-23-00617-CV
• Status: Published

Opinion

Dismiss and Opinion Filed November 13, 2023

In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00617-CV

MICHAEL LEWIS AND MICHELLE SHUMATE, Appellants V. MICHAEL PORAY AND PAIGE PORAY A/N/F M.P., A MINOR CHILD, Appellees

On Appeal from the 191st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-23-06449

MEMORANDUM OPINION Before Justices Molberg, Reichek, and Smith Opinion by Justice Molberg Appellants appeal from the associate judge’s “Order denying Defendants’

Plea to the Jurisdiction[.]” Because no appealable order has been signed, we dismiss

the appeal. See TEX. R. APP. P. 42.3(a).

Appellees filed the underlying suit against appellants, assistant principals at

appellees’ son’s high school, seeking a declaratory judgment and temporary

injunctive relief. In response, appellants filed a plea to the jurisdiction. The

associate judge heard argument on the plea at the temporary injunction hearing, and following the hearing, signed an order titled “Order Denying Plaintiffs’ Motion for

Temporary Injunction Nunc Pro Tunc.” The order recites in its entirety as follows:

On June 2, 2023, the Court considered Plaintiff’s motion to grant a Temporary Injunction against Defendants Michael Lewis and Michelle Shumate.

After conducting an evidentiary hearing, and considering the pleadings and arguments of counsel, the Court DENIES the Request for Temporary Injunction. It is therefore ORDERED, ADJUDGED, and DECREED that Plaintiffs’ motion for a Temporary Injunction is DENIED.

All other relief requested is hereby DENIED.

Although appellants appeal from the “Order denying Defendants’ Plea to the

Jurisdiction[,]” no such order was signed. Instead, relying on Thomas v. Long, 207

S.W.3d 334 (Tex. 2006), appellants construed the order denying temporary

injunctive relief as implicitly denying their plea, “because, without jurisdiction, [the

associate judge] did not have the authority to rule on [the] request for [injunctive

relief].” 207 S.W.3d at 339-40 (“Because a trial court cannot reach the merits of a

case without subject matter jurisdiction (citation omitted), a trial court that rules on

the merits of an issue without explicitly rejecting an asserted jurisdictional attack

has implicitly denied the jurisdictional challenge.”).

In a letter questioning our jurisdiction, we noted that, to the extent the order

denying temporary injunctive relief might have implicitly denied the plea, the order

was not yet appealable because the referring court had not signed it. See TEX. GOV’T

CODE ANN. § 54A.116(b),(c) (together providing that the date an agreed or default

–2– order is signed by the associate judge is the controlling date for the purpose of an

appeal to an appellate court; an appeal from all other orders signed by the associate

judge is controlled by the date the referring court signs the order). We directed

appellants to file jurisdictional briefing, but although they complied, they failed to

address our concern. Accordingly, on the record before us, we dismiss the appeal.

See id. § 54A.116(b); TEX. R. APP. P. 42.3(a).

/Ken Molberg// 230617f.p05 KEN MOLBERG JUSTICE

–3– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

MICHAEL LEWIS AND On Appeal from the 191st Judicial MICHELLE SHUMATE, Appellants District Court, Dallas County, Texas Trial Court Cause No. DC-23-06449. No. 05-23-00617-CV V. Opinion delivered by Justice Molberg, Justices Reichek and Smith MICHAEL PORAY AND PAIGE participating. PORAY A/N/F M.P., A MINOR CHILD, Appellees

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

We ORDER that appellees Michael Poray and Paige Poray a/n/f M.P., a minor child, recover their costs, if any, of this appeal from appellants Michael Lewis and Michelle Shumate.

Judgment entered this 13th day of November, 2023.

–4–