Summary
concluding appellant waived complaint trial court erred by denying request for temporary injunction by failing to secure ruling
Summary of this case from White v. CalvacheOpinion
No. 05-07-00256-CV
Opinion Filed January 17, 2008.
On Appeal from the 134th Judicial District Court Dallas County, Texas, Trial Court Cause No. DC-06-07388.
Before Justices O'NEILL, RICHTER, and LANG.
MEMORANDUM OPINION
This is a special exceptions case. Booker seeks reversal of the dismissal of his case against Steve Blow arising from the columnist's failure to write a newspaper article about an alleged conspiracy that lead to Booker's incarceration. Booker raises two issues, the first relating to the trial court not issuing injunctive relief, and the second contending the associate judge erred when she sustained Blow's special exceptions. Finding no reversible error, we affirm the trial court's judgment.
Background
Booker sent Blow information he believes proves that his incarceration results from a conspiracy among several lawyers, judges and public officials, including United States Senator John Cornyn and Texas Attorney General Greg Abbott. Booker asked Blow to publish a story in The Dallas Morning News ("Newspaper") about his claims. After Booker received no response, he filed this case against Blow. The Newspaper is not a party. Booker asks for an order enjoining Blow "from restraining [Booker] from freedom of the press and speech to the public and by restraining [Booker] from placing in the [Newspaper] information of official misconduct. . . ."
Blow filed amended special exceptions objecting to Plaintiff's Amended Petition for Injunctive Relief because the pleading (1) was not verified, (2) does not contain a plain and intelligible statement of grounds for injunctive relief, and (3) does not state a cognizable cause of action for which relief can be granted. Blow's second and third special exceptions were sustained at a hearing on November 30, 2006. Booker did not appear at the November 30 hearing because he was incarcerated at the Allred Unit of the Texas Department of Criminal Justice in Wichita County. After the associate judge determined that Booker had been duly notified of the hearing, she ordered Booker replead "in plain and intelligible statements facts that support a cause of action for which the requested relief may, if appropriate, be granted: on or before December 15, 2006 ("First Order"). The associate judge, however, denied Blow's request for dismissal based upon his special exceptions.
Under Texas Civil Practice and Remedies Code section 132.000(a), an unsworn declaration is sufficient and notarization is not required for a Texas inmate. Tex. Civ. Prac. Rem. Code Ann. § 132.001(a) (Vernon 2005).
Booker did not amend his pleadings in response to the First Order. The district court then held a second hearing on Blow's special exceptions and corresponding motion to dismiss on January 25, 2007. The trial judge found that Booker had failed to amend his pleadings to state a cognizable cause of action. The trial court sustained Blow's special exceptions for the second time, ordered Booker take nothing on his claims, and dismissed the lawsuit ("Second Order").
Discussion
Booker appeals dismissal on two bases. We construe his first issue to contend that the trial court erred when it denied his request for a temporary injunction. However, there was no hearing or ruling below on his claim for injunctive relief. Under Texas Rule of Appellate Procedure 33.1, in order to preserve the issue for appeal, Booker was required to make his complaint and secure a ruling. Tex. R. App. P. 33.1; Galtex Prop. Investors, Inc. v. City of Galveston, 113 S.W.3d 922, 926 (Tex.App.-Houston[14th Dist.] 2003, no pet.) (Rule 33.1 "requires an objection to and ruling by the trial court on an issue before it is raised on appeal"). Booker did not secure a ruling. As a result, we conclude he has waived his first issue.
Point of Error One: "The trial court abused its "discretion and the court's duty to stop the subjects of the injunctive relief who violated the law involving a conspiracy that is ongoing as today. The court is in violation of appellant civil rights and injunction 102. Where as the judges duty is to restrain violations of the l law." (errors in original).
We construe Booker's second issue to complain that the trial court erred when it granted Blow's special exceptions in the First Order because Blow's lawyer stated he understood the substance of Booker's claims. Because his claims were understood, Booker argues Blow's special exceptions should not have been sustained. Neither Booker's issue nor argument addresses the Second Order. Instead, Booker seeks to appeal the First Order. However, as an interlocutory order, it merely gave Booker the opportunity to replead and was then superceded by the Second Order which dismissed the case. Brewer Pritchard, P.C. v. Johnson, 167 S.W.3d 460, 465 (Tex.App.-Houston[14th Dist.] 2005, pet.denied) (superceded order is moot).
Point of Error Two: "The court abused its' discretion when the Honorable Judge Theresa Guerra Snelson, associated judge sitting for the Hon. Judge Ann Ashby when it came to her knowledge that the Defendant Steve Blow's attorney R. Heath Cheek stated he did understand what appellant were saying intelligible and plain statement as evidenced on page (8)." (errors in original).
In addition, appellate courts only have jurisdiction over final judgments and such interlocutory orders as the legislature deems appealable. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998); see Tex. Civ. Prac. Rem. Code Ann. § 51.014 (Vernon Supp. 2007) (listing appealable interlocutory orders). An order granting special exceptions but denying dismissal is not a final judgment or an appealable interlocutory order. Law Offices of Windle Turley, P.C. v. French, 109 S.W.3d 599, 601 (Tex.App.-Dallas 2003, no pet.) (Appeal dismissed for want of jurisdiction because order did not dispose of all claims and parties before trial court or state it was a final judgment). We, therefore, conclude Booker's second issue fails.
Conclusion
Having resolved both issues against Booker, we affirm the trial court's judgment.