Karen MC Andrews and John Lowe v. Jody Lowe and Phyniss Donald Lowe ( 2017 )

Opinion issued May 16, 2017
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00836-CV
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KAREN MCANDREWS AND JOHN LOWE, Appellants
V.
JODY LOWE AND PHYNISS DONALD LOWE, Appellees
On Appeal from the County Court at Law
Austin County, Texas
Trial Court Case No. 2014L-6013
MEMORANDUM OPINION
The clerk’s record filed in this Court reflects that appellants, Karen
McAndrews and John Lowe, are parties to a suit affecting the parent-child
relationship regarding Lowe’s children and McAndrews’s grandchildren. Appellants
have filed a notice of appeal, attempting to appeal a “Rule 11 Agreement,” the trial
court’s order for issuance of a writ of attachment, and the trial court’s ruling on a
contest to an affidavit of inability to pay costs. We dismiss the appeal for want of
jurisdiction.
Generally, appellate courts have jurisdiction only over appeals from final
judgments. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Ne.
Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). An appellate court
also has jurisdiction to consider an appeal from an interlocutory order if a statute
explicitly provides jurisdiction. Stary v. DeBord, 967 S.W.2d 352, 352–53 (Tex.
1998); see TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (West Supp. 2016)
(authorizing appeals from certain interlocutory orders). The clerk’s record does not
show that the trial court has signed an appealable interlocutory order or a final
judgment.
Accordingly, the Clerk of this Court notified appellants that the appeal was
subject to dismissal for want of jurisdiction unless they filed a written response
showing how this Court has jurisdiction over the appeal. See TEX. R. APP. P. 42.3(a).
Appellants responded that “the Rule 11 Agreement, dated 8-27-15[,]”was not
“‘intrinsically interlocutory,’” “dispos[ed] of all parties legally before [the trial
court] and of all issues made by the pleadings between such parties,” and “serves as
the ‘final judgment.’”
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“[A] rule 11 agreement signed by the parties and filed with a court is not in
itself a court order . . . .” Schoendienst v. Haug, 399 S.W.3d 313, 320 (Tex. App.—
Austin 2013, no pet.); see TEX. R. CIV. P. 11 (“[N]o agreement between attorneys or
parties touching any suit pending will be enforced unless it be in writing, signed and
filed with the papers as part of the record, or unless it be made in open court and
entered of record.”); Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 306 (Tex. 2004)
(stating filing agreement with trial court was “requirement for enforcement” but was
not “request for enforcement or any other affirmative action by the trial court”).
However, “nothing in the rules of procedure prohibits a Rule 11 agreement” from
being a judgment “so long as the agreement meets the requirements for a final
judgment.” In re Vaishangi, Inc., 442 S.W.3d 256, 259 (Tex. 2014). A judgment is
final if it disposes of all claims and parties before the court or states with
unmistakable clarity that it is a final judgment as to all claims and all parties. Id.
(citations omitted); Aldridge, 400 S.W.2d at 895.
Here, the Rule 11 Agreement does not meet the requirements of a final
judgment. The agreement is signed by appellants, appellee Jody Lowe, and counsel,
and reflects their agreement regarding, among other things, the children and the trial
court proceedings, including a hearing set for September 24, 2015, and appellee
Phyniss Donald Lowe’s request “that his intervention be non-suited.” The agreement
includes the trial court’s filemark, indicating that the agreement was filed in the trial
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court record on August 25, 2015. However, the agreement is not signed by the trial
court. See S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995) (citations
omitted) (“Judgment is rendered when the trial court officially announces its
decision in open court or by written memorandum filed with the clerk.”); see also In
re M.D.G., No. 08-16-00004-CV, 2017 WL 382950, at *4 (Tex. App.—El Paso Jan.
27, 2017, no pet.) (“The signing of a formal order or judgment is essential to trigger
the appellate timetable . . . .”). And, the agreement does not dispose of the claims
and parties before the trial court or state that it is a final judgment. See In re
Vaishangi, 442 S.W.3d at 260 (holding parties’ rule 11 agreement to dismiss all
claims was not final judgment, although signed by trial court, because agreement
contained “no decretal language typically seen in a judgment (i.e., ‘ordered,
adjudged, and decreed’).”) The Rule 11 Agreement does not constitute a final
judgment, and we have no jurisdiction over the attempted appeal from the
agreement.
Appellants’ notice of appeal also states that they seek to challenge a June 3,
2015 order for issuance of a writ of attachment to take McAndrews into custody.
This Court has jurisdiction to consider an appeal from an interlocutory order only if
a statute specifically provides jurisdiction. See Stary, 967 S.W.2d at 352–53; see also
Pina v. Shaw, No. 01-03-00088-CV, 2004 WL 306096, at *1 (Tex. App.—Houston
[1st Dist.] Feb. 19, 2004, no pet.) (mem. op.) (citing Johnson v. Parish, 547 S.W.2d
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311, 313 (Tex. App.—Houston [1st Dist.] 1977, no writ)) (stating temporary orders
in suit affecting parent-child relationship are interlocutory and no statutory provision
authorizes appeal of orders). The order for issuance of the writ of attachment is not
an appealable order. See In re Cantu de Villarreal, No. 13-08-00408-CV, 2009 WL
888467, at *6 (Tex. App.—Corpus Christi Apr. 2, 2009, orig. proceeding) (mem.
op.).
Finally, appellants’ notice of appeal states that they seek to challenge the trial
court’s ruling on the court reporter’s contest to McAndrews’s affidavit of inability
to pay costs. On November 16, 2015, the court reporter filed a contest to “the
affidavit of inability to pay costs which alleges that Karen McAndrews is unable to
pay costs in this case filed by Karen McAndrews.” Pursuant to Texas Rule of
Appellate Procedure 20.1, the court reporter asked the trial court “to set [the] matter
for hearing and take evidence and require Karen McAndrews to prove her alleged
inability by competent evidence other than by the affidavit.” The clerk’s record
includes the trial court’s docket sheet that indicates that, on November 24, 2015, the
trial court held a hearing and states “Request for free record—DENIED.”1
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The notice of appeal also indicates that appellants seek to challenge the trial court’s
“[r]efusal to comply” with Texas Government Code section 52.047, which
addresses a court reporter’s furnishing a record. See TEX. GOV’T CODE ANN.
§ 52.047(a) (West 2013). With their notice of appeal, each appellant filed a
“Statement of Inability to Afford Payment of Court Costs or an Appeal Bond,”
executed on October 6, 2016. See TEX. R. CIV. P. 145(a), (b). The clerk’s record
does not include any contest to these affidavits or any order that requires appellants
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A trial court’s “docket-sheet entry ordinarily forms no part of the record that
may be considered; rather, it is a memorandum made for the trial court and clerk’s
convenience.” In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311, 315 (Tex. App.—
Houston [1st Dist.] 2006, orig. proceeding) (citations omitted). A docket-sheet entry
generally is insufficient to constitute a judgment or order of the court. Id. (citations
omitted). Here, the docket sheet entry does not constitute a written order of the court
sustaining the court reporter’s contest to McAndrews’s affidavit of inability to pay
costs.
But even were the docket-sheet entry an order sustaining the contest,
appellants did not timely seek appellate review of the order. Under the rule
applicable at the time the court reporter filed the contest, appellants had to seek
review of any trial court order sustaining the contest “by filing in the appellate court
a motion challenging the order, within ten days after the order sustaining the contest
[was] signed.” Clinkscale v. Corp. Auto Servs., Inc., No. 01-15-00938-CV, 2016 WL
1106871, at *1 (Tex. App.—Houston [1st Dist.] Mar. 22, 2016, no pet.) (mem. op.)
(citing TEX. R. APP. P. 20.1(j)(1), (2), 75 TEX. B.J. 228, 229 (Tex. 2012), amended
to pay costs, including the fees for preparation of the reporter’s record. See id.
145(a),(c), (f); TEX. R. APP. P. 20.1; see also In re J.S., No. 05-17-00341-CV, 2017
WL 1455406, at *1 (Tex. App.—Dallas Apr. 20, 2017, no pet. h.) (mem. op.)
(“[Rule] 145 exempts a party from paying court costs, including the reporter’s fee,
if the party files a statement showing he does not have the funds to pay.”). Because
we dismiss this appeal for want of jurisdiction, any issue regarding a failure to file
a reporter’s record in this appeal is moot.
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effective Sept. 1, 2016). Appellants did not file a motion to contest the ruling in this
Court and did not file their notice of appeal until October 11, 2016, nearly one year
after the trial court’s docket-sheet entry.
Based on the foregoing, we conclude that this Court does not have jurisdiction
over this attempted appeal and dismiss the appeal for want of jurisdiction. We
dismiss as moot all pending motions.
PER CURIAM
Panel consists of Justices Jennings, Huddle, and Lloyd.
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