Vanessa Erin Browning v. B. Rose Lockhart

• Court: Court of Appeals of Texas
• Decided: November 27, 2018
• Docket: 01-17-00874-CV
• Status: Published

Opinion

Opinion issued November 27, 2018

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-17-00874-CV ——————————— VANESSA ERIN BROWNING, Appellant V. B. ROSE LOCKHART, Appellee

On Appeal from the 505th District Court Fort Bend County, Texas Trial Court Cause No. 17-DCV-243845

MEMORANDUM OPINION Appellant, Vanessa Erin Browning, proceeding pro se, attempts to appeal from

the docket entry by the trial court on October 19, 2017, denying her divorce petition.

We dismiss this appeal for want of jurisdiction. Generally, appellate courts have jurisdiction over appeals from signed final

judgments or final orders. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192–93

(Tex. 2001). To be final, a judgment or order must “actually dispose[] of all claims

and parties then before the court, regardless of its language, or it states with

unmistakable clarity that it is a final judgment as to all claims and all parties.” Id. at

204.

We are authorized by statute to consider an appeal from a “final order”

rendered under Title 5 of the Family Code, unless a statute authorizes an

interlocutory appeal. TEX. FAM. CODE ANN. § 109.002(b) (West 2014) (“An appeal

may be taken by any party to a suit from a final order rendered under this title.”);

see, e.g., Brejon v. Johnson, 314 S.W.3d 26, 33 (Tex. App.—Houston [1st Dist.]

2009, no pet.). To be a “final order” under Title 5 of the Family Code, other than in

a termination case under Chapter 161 or an adoption case under Chapter 162, the

order must contain the several items listed under Section 105.006. See TEX. FAM.

CODE ANN. § 105.006(a), (d), (e) (West 2014) (listing contents of final order under

Title 5 of Family Code not involving Chapters 161 or 162).

Here, appellant’s notice of appeal lists the order on appeal as the “order of

dismissal dated October 19, 2017,” but the letter of assignment lists the “Date of

Judgment/Appealable Order” as “October 19, 2017-Case Dismissed-Judge Docket

Entry.” Similarly, after reviewing the clerk’s record, there is no final order signed

2 by the trial court on October 19, 2017, or any other date. Instead, there is a docket

entry for October 19, 2017, stating, as follows:

Petition for Divorce, is denied. Same-Sex Marriage – pre-dating Obergefel [sic], 6/19/12, Court finds that Obergegel [sic] is not retroactive, marriage conducted in State of NY, Respondent has never lived in Texas. Case Dismissed. NY last marital state. dp

However, this docket entry neither was memorialized as a signed order nor is it a

“final order” under Title 5 of the Family Code because it does not contain the several

items required under Section 105.006 and it does not state that it disposes of all

parties and claims. See TEX. R. APP. P. 26.1; TEX. FAM. CODE ANN. § 105.006(a),

(d), (e); see also Lehmann, 39 S.W.3d at 204.

The Clerk of this Court’s October 18, 2018 notice warned appellant that this

appeal was subject to dismissal for want of jurisdiction unless she timely requested

that a supplemental clerk’s record with a signed final order be filed or otherwise

responded to show how this Court had jurisdiction within ten days of that notice.

See TEX. R. APP. P. 42.3(a), (c). Appellant’s counsel timely filed a letter in response

on October 25, 2018, stating that he had requested that the district clerk file a

supplemental clerk’s record after the district court signed his proposed final order of

dismissal nunc pro tunc that he had filed there on October 23, 2018.

However, the district clerk filed a supplemental clerk’s record on November

13, 2018, containing the unsigned proposed final order of dismissal nunc pro tunc,

and a docket entry for November 6, 2018, stating: 3 Record, Sheryl Stapp, Attorney Paul Castillo with Vanessa Browning, No Motion on File, No correction (for a Nunc Pro Tunc) – since there is no order to correct, Order for Nunc Pro Tunc setting is passed – since there is no motion filed requesting hearing, Notice req to Respondent. dp

Thus, we lack jurisdiction over this appeal because a docket entry is not an

appealable final order and the clerk’s record does not indicate that any appealable

order has been signed. See TEX. FAM. CODE ANN. § 109.002(b); see, e.g., Dejean v.

Brown, No. 01-17-00949-CV, 2018 WL 2011668, at *1–2 (Tex. App.—Houston [1st

Dist.] May 1, 2018, no pet.) (per curiam) (mem. op.) (dismissing appeal for want of

jurisdiction because docket entry denial of divorce was not appealable and signed

final order).

Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP.

P. 42.3(a), (c); 43.2(f).

PER CURIAM Panel consists of Justices Higley, Lloyd, and Caughey.