Terry Lee Hardin Sr. v. Darla Ruth Hardin

• Court: Court of Appeals of Texas
• Decided: March 10, 2011
• Docket: 14-09-01048-CV
• Status: Published

Opinion

Appeal Reinstated, Dismissed, and Memorandum Opinion filed March 10, 2011.

In The

Fourteenth Court of Appeals

____________

NO. 14-09-01048-CV

TERRY LEE HARDIN, SR., Appellant

V.

DARLA RUTH HARDIN, Appellee

On Appeal from the 308th District Court

Harris County, Texas

Trial Court Cause No. 2007-26484

M E M O R A N D U M   O P I N I O N

This is an attempted appeal from the denial of appellant’s petition to enforce the parties’ property division after a divorce.  The clerk’s record in this appeal does not contain an order denying appellant’s petition.  On September 23, 2010, this court abated the appeal so that appellant could file a supplemental record containing a signed, written order denying appellant’s petition for enforcement.  See Tex. R. App. P. 27.2 (permitting the appellate court to treat actions taken before an appealable order is signed as relating to an appeal of that order and give them effect as if they had been taken after the order was signed).  On October 22, 2010, a supplemental clerk’s record was filed, but it contained the same November 19, 2009, order denying appellee’s motion for contempt that was contained in the original clerk’s record.  The record contained the district clerk’s certification that the case file contained no signed order related to the petition to enforce the property division filed June 13, 2008, or the amended petition to enforce the property division filed September 11, 2009.

On November 2, 2010, notification was transmitted to the parties of this court’s intention to dismiss the appeal for want of jurisdiction unless appellant filed a response demonstrating that this court has jurisdiction over the appeal on or before November 15, 2010.  See Tex. R. App. P. 42.3(a).  On November 17, 2010, a supplemental clerk’s record was filed, but it contained only a docket sheet reflecting that the motion to enforce was denied.  An entry made on a docket sheet does not constitute a written order and is not appealable.  See In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 831 (Tex. 2005). 

On November 23, 2010, the court again ordered the record supplemented on or before December 20, 2010.  On December 20, 2010, a supplemental clerk’s record was filed containing the clerk’s certification that as of that date, no order had been signed or filed relating to the denial of appellant’s petition for enforcement of the property division. 

On January 3, 2011, notification was transmitted to the parties of this court’s intention to dismiss the appeal for want of jurisdiction unless appellant filed a response demonstrating that this court has jurisdiction over the appeal on or before January 18, 2011.  See Tex. R. App. P. 42.3(a).  On January 18, 2011, appellant requested additional time to supplement the record.  No supplement was filed.  On January 31, 2011, notification was again transmitted to the parties of this court’s intention to dismiss the appeal for want of jurisdiction unless appellant filed a response demonstrating that this court has jurisdiction over the appeal on or before February 11, 2011.  See Tex. R. App. P. 42.3(a).  The letter noted that no further extensions of time would be granted.  On February 11, 2011, appellant again submitted a letter requesting additional time to file the supplemental record.  To date, appellant has had more than five months to obtain a signed order and file a supplemental clerk’s record, and he has not provided the record as ordered. 

In the absence of a signed order, we lack jurisdiction over this appeal.  Accordingly, the appeal is ordered reinstated and dismissed.^[1]

PER CURIAM

Panel consists of Justice Brown, Boyce, and Jamison. 

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^[1]  We note that the dismissal is without prejudice to the filing of a new notice of appeal after an appealable order has been signed.