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 2002-10

Gregory Van Gentry v. Jan Allyn Gentry ( 2002 )


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  •                                                              11th Court of Appeals

                                                                      Eastland, Texas

                                                                            Opinion

     

    Gregory Van Gentry

    Appellant

    Vs.                   No. 11-02-00092-CV B Appeal from Dawson County

    Jan Allyn Gentry

    Appellee

     

    This is an attempted interlocutory appeal from an order denying a temporary injunction pending a divorce proceeding.  Jan Allyn Gentry (Jan) filed a petition for divorce against Gregory Van Gentry (Gregory).  Gregory filed an application for temporary and permanent injunctive relief requiring Jan to reconcile with Gregory.  The trial court denied the injunction, and Gregory filed this appeal.  We dismiss the appeal for lack of jurisdiction.

    Issue Presented

    Gregory presents one issue on appeal complaining that the trial court abused its discretion by denying his application for an injunction.  Jan presents one cross-point for sanctions against Gregory for bringing a frivolous appeal.  We raise the issue of jurisdiction on our own initiative.

    Appellate Jurisdiction

    Absent an express grant, appellate courts do not have jurisdiction to review interlocutory orders.  New York Underwriters Insurance Company v. Sanchez, 799 S.W.2d 677, 679 (Tex.1990).  Although TEX. CIV. PRAC. & REM. CODE ANN. ' 51.014(a)(4) (Vernon Supp. 2002) provides for an interlocutory appeal from an order that Agrants or refuses a temporary injunction or grants or overrules a motion to dissolve a temporary injunction as provided by Chapter 65,"[1] TEX. FAM. CODE ANN. ' 6.507 (Vernon 1998) provides that:  AAn order under this subchapter [Subchapter F],[2] except an order appointing a receiver, is not subject to interlocutory appeal.@[3]  TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4) (Vernon Supp. 2002); TEX. FAM. CODE ANN. § 6.507 (Vernon Supp. 2002). The predecessor statute to Family Code Section 6.507 has been interpreted to control over Section 51.014(a)(4) of the Texas Civil Practice and Remedies Code.  Cook v. Cook, 886 S.W.2d 838, 839 (Tex.App. - Waco 1994, no writ).

    Jan filed her petition for divorce under TEX. FAM. CODE ANN. ch. 6 (Vernon 1998 & Supp. 2002).  Gregory requested a temporary injunction under Section 6.502 (Subchapter F).  The resulting order of the trial court denying Gregory=s request for a temporary injunction is an order under Section 6.502 (Subchapter F). Therefore, Section 6.507 expressly provides that the order is not subject to interlocutory appeal.

    Jurisdiction is fundamental; and we must determine whether we have jurisdiction over an appeal, regardless of whether the parties raised the issue.  See Buffalo Royalty Corporation v. Enron Corp., 906 S.W.2d 275, 277 (Tex.App. - Amarillo 1995, no writ); Texaco, Inc. v. Shouse, 877 S.W.2d 8, 11 (Tex.App. - El Paso 1994, no writ).  Appellate jurisdiction cannot be created by the court or by the consent, stipulation, or waiver of the litigants.  Texaco, Inc. v. Shouse, supra at 11.  Therefore, although both parties would like for us to consider Gregory’s issue, we are not at liberty to do so.

    Sanctions

    Jan brings a cross-point for sanctions against Gregory based upon a frivolous appeal.  TEX.R.APP.P. 45 requires a party seeking sanctions to file a motion for sanctions. TEX.R.APP.P. 10.1 sets forth the requirements for a motion under Rule 45.  Jan did not file a motion in support of its cross-point for sanctions. Although Rule 45 allows us to impose sanctions after notice and a reasonable opportunity for response, we decline to do so.  


    This Courts Ruling

    The appeal is dismissed for want of jurisdiction. Jan=s request for sanctions is denied.

     

    TERRY McCALL

    JUSTICE

     

    October 24, 2002

    Do not publish.  See TEX.R.APP.P. 47.3(b).

    Panel consists of: Arnot, C.J., and

    Wright, J., and McCall, J.


         [1]TEX. CIV. PRAC. & REM. CODE ANN. ' 65.01 et seq. (Vernon 1997 & Supp. 2002).

         [2]TEX. FAM. CODE ANN. '' 6.501 - 6.507 (Vernon 1998 & Supp. 2002).

         [3]An exception to Section 6.507 exists when the appeal is a constitutional argument framed as a request for a temporary injunction.  Waite v. Waite, 64 S.W.3d 217, 224 n.6 (Tex.App. B Houston [14th Dist.] 2001, pet=n den=d).   The constitutional exception does not apply to the present facts.