Opinion
No. 05-12-00511-CV
12-21-2012
VINCE FUDZIE, INDIVIDUALLY, AND TMV, LLC D/B/A TRIUNE, Appellants v. ANN M. WILLIAMS, A/K/A ANNIE M. WILLIAMS, INDIVIDUALLY, ANNIE M. WILLIAMS, AS DIRECTOR AND FOUNDER OF THE DALLAS BLACK DANCE THEATRE IN HER OFFICIAL CAPACITY, ANGELIA WILLIAMS, INDIVIDUALLY, DALLAS BLACK DANCE THEATRE, INC., BOARD OF DIRECTORS, AS A CORPORATE BODY AND IN THEIR OFFICIAL CAPACITY, MARVIN E. ROBINSON, DIRECTOR AND CHAIRMAN, GEORGIA R. SCAIFE, DIRECTOR AND PRESIDENT, WYNN WATKINS, DIRECTOR, PAULETTE TURNER, SECRETARY, DEBRA BLAIR ABRON, DIRECTOR, GEORGE AGUIRRE, DIRECTOR, DAVID ANDERSON, DIRECTOR, KENNEDY BARNES, DIRECTOR, A. SHONN BROWN, DIRECTOR, BILL E. BROWN, DIRECTOR, JUANITA BROWN, DIRECTOR, WILLIAM B. CHURCHILL, DIRECTOR, MARK COOKS, DIRECTOR, ROBBIE DOUGLAS, DIRECTOR, GILBERT GERST, DIRECTOR, JOHNESE GILMETTE, DIRECTOR, CLARENCE GRIER, DIRECTOR, CLEM MADDOX, DIRECTOR, LEE MCKINNEY, DIRECTOR, HERDERCINE NASH, DIRECTOR, E. OKPA II, DIRECTOR, AVALYN PACE, DIRECTOR, RON PATTERSON, DIRECTOR, SHEENA PAYNE, DIRECTOR, STEPHANIE PHILLIPS, DIRECTOR, JIMMY PORCH, DIRECTOR, JOHN POWELL, JR., DIRECTOR, TONYA SADLER-GRAYSON, DIRECTOR, LAVIDA SAMUEL MCGHEE, DIRECTOR, TERRY SANDERS, DIRECTOR, CAMERON SMITH, DIRECTOR, JENNIFER SOLES, DIRECTOR, ALETA STAMPLEY, DIRECTOR, DIANE STEPHENSON, DIRECTOR, KIMBERLY STRONG, DIRECTOR, ROBERT B. TAPLEY, DIRECTOR, ROSALYN THIBODEAUX FITCH, DIRECTOR, LINDA TODD, DIRECTOR, TERDEMA L. USSERY, DIRECTOR, WAYLAND WALKER, DIRECTOR, JAMES WASHINGTON, DIRECTOR, TANYA WATKINS, DIRECTOR, KIM WHITAKER, DIRECTOR, ANNIE M. WILLIAMS, DIRECTOR, LISA YOUNG, DIRECTOR, ZENETTA S. DREW, EXECUTIVE DIRECTOR, Appellees
On Appeal from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-10-05215
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Francis and Lang-Miers
Opinion By Chief Justice Wright
Our jurisdiction is never presumed and is invoked only upon the filing of a notice of appeal from either an interlocutory order the legislature has deemed appealable or a final judgment that disposes of all parties and claims in a case. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Beckham Group, P.C. v. Snyder, 315 S.W.3d 244, 245 (Tex. App.—2010, no pet.). At issue in this appeal is the trial court's order striking the second amended petition of appellants, and plaintiffs below, Vince Fudzie, individually, and TMV, LLC d/b/a Triune (collectively, "Fudzie"). Generally, an order striking an amended pleading has the effect of restoring the immediately-preceding pleading as the live pleading upon which the parties will proceed at trial. TEX. R. CIV. P. 65; see also Randle v. NCNB Tex. Nat'l Bank, 812 S.W.2d 381, 384 (Tex. App.—Dallas 1991, no writ) (quoting Vordenbaum v. Ackermann, 393 S.W.2d 927, 929 (Tex. Civ. App.—San Antonio 1965), aff'd, 403 S.W.2d 362 (Tex. 1966)). As such, it is interlocutory and not final.
The order is based on a motion by three of the appellees asserting the petition was filed in violation of the pleadingsdeadline set by the trial court. See TEX. R. CIV. P. 166.
We have found no authority allowing the appeal from an interlocutory order striking an amended pleading. See generally TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (West Supp. 2012) (listing appealable interlocutory orders). By letter dated September 27, 2012, we directed Fudzie to file, within ten days, a letter brief addressing our concern. To date, Fudzie has failed to comply.
Authority for interlocutory appeals is also contained in Texas Rule of Civil Procedure 76a and interspersed among various other statutes. See TEX. R. CIV. P. 76a(8) (order relating to sealing or unsealing of court records); see also, e.g., TEX. CIV. PRAC. & REM. CODE ANN. §§ 15.003(b) (West Supp. 2012) (order concerning venue), 51.016 (West Supp. 2012) & 171.098 (West 2011) (certain orders concerning arbitration); TEX. FAM. CODE ANN. § 56.01(c)(1)(D) (West Supp. 2012) (order committing child to facility for the mentally ill or mentally retarded).
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Because the appealed order is neither final nor otherwise appealable, we dismiss the appeal. See TEX. R. APP. P. 42.3(a).
________________________
CAROLYN WRIGHT
CHIEF JUSTICE
No. 05-12-00511-CV
VINCE FUDZIE, INDIVIDUALLY, AND TMV, LLC D/B/A TRIUNE, Appellants
V.
ANN M. WILLIAMS, A/K/A ANNIE M. WILLIAMS, INDIVIDUALLY,
ANNIE M. WILLIAMS, AS DIRECTOR AND FOUNDER OF THE DALLAS BLACK
DANCE THEATRE IN HER OFFICIAL CAPACITY, ANGELIA WILLIAMS,
INDIVIDUALLY, DALLAS BLACK DANCE THEATRE, INC., BOARD OF
DIRECTORS, AS A CORPORATE BODY AND IN THEIR OFFICIAL CAPACITY,
MARVIN E. ROBINSON, DIRECTOR AND CHAIRMAN, GEORGIA R. SCAIFE,
DIRECTOR AND PRESIDENT, WYNN WATKINS, DIRECTOR, PAULETTE
TURNER, SECRETARY, DEBRA BLAIR ABRON, DIRECTOR, GEORGE AGUIRRE,
DIRECTOR, DAVID ANDERSON, DIRECTOR, KENNEDY BARNES, DIRECTOR,
A. SHONN BROWN, DIRECTOR, BILL E. BROWN, DIRECTOR, JUANITA BROWN,
DIRECTOR, WILLIAM B. CHURCHILL, DIRECTOR, MARK COOKS, DIRECTOR,
ROBBIE DOUGLAS, DIRECTOR, GILBERT GERST, DIRECTOR,
JOHNESE GILMETTE, DIRECTOR, CLARENCE GRIER, DIRECTOR,
CLEM MADDOX, DIRECTOR, LEE MCKINNEY, DIRECTOR, HERDERCINE NASH,
DIRECTOR, E. OKPA II, DIRECTOR, AVALYN PACE, DIRECTOR,
RON PATTERSON, DIRECTOR, SHEENA PAYNE, DIRECTOR,
STEPHANIE PHILLIPS, DIRECTOR, JIMMY PORCH, DIRECTOR,
JOHN POWELL, JR., DIRECTOR, TONYA SADLER-GRAYSON, DIRECTOR,
LAVIDA SAMUEL MCGHEE, DIRECTOR, TERRY SANDERS, DIRECTOR,
CAMERON SMITH, DIRECTOR, JENNIFER SOLES, DIRECTOR,
ALETA STAMPLEY, DIRECTOR, DIANE STEPHENSON, DIRECTOR,
KIMBERLY STRONG, DIRECTOR, ROBERT B. TAPLEY, DIRECTOR,
ROSALYN THIBODEAUX FITCH, DIRECTOR, LINDA TODD, DIRECTOR,
TERDEMA L. USSERY, DIRECTOR, WAYLAND WALKER, DIRECTOR,
JAMES WASHINGTON, DIRECTOR, TANYA WATKINS, DIRECTOR,
KIM WHITAKER, DIRECTOR, ANNIE M. WILLIAMS, DIRECTOR, LISA YOUNG,
DIRECTOR, ZENETTA S. DREW, EXECUTIVE DIRECTOR, Appellees
On Appeal from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-10-05215
JUDGMENT
Before Chief Justice Wright and Justices Francis and Lang-Miers
Opinion By Opinion delivered by Chief Justice Wright
In accordance with this Court's opinion of this date, we DISMISS the appeal. We ORDER that appellees Ann M. Williams, A/k/a Annie M. Williams, Individually, Annie M. Williams, as Director and Founder of the Dallas Black Dance Theatre in Her Official Capacity, Angelia Williams, Individually, Dallas Black Dance Theatre. Inc., Board of Directors, as a Corporate Body and in Their Official Capacity, Marvin E. Robinson, Director and Chairman, Georgia R. Scaife. Director and President, Wynn Watkins, Director, Paulette Turner, Secretary, Debra Blair Abron, Director, George Aguirre, Director, David Anderson, Director, Kennedy Barnes, Director, A. Shonn Brown, Director, Bill E. Brown, Director, Juanita Brown, Director, William B. Churchill, Director, Mark Cooks, Director, Robbie Douglas, Director, Gilbert Gerst Director, Johnese Gilmette, Director, Clarence Grier, Director, Clem Maddox, Director, Lee McKinney, Director, Herdercine Nash, Director, E. Okpa Ii, Director, Avalyn Pace, Director, Ron Patterson, Director, Sheena Payne, Director, Stephanie Phillips, Director, Jimmy Porch, Director, John Powell, Jr., Director, Tonya Sadler-Grayson, Director, Lavida Samuel McGhee, Director, Terry Sanders, Director, Cameron Smith, Director, Jennifer Soles, Director, Aleta Stampley, Director, Diane Stephenson, Director, Kimberly Strong, Director, Robert B. Tapley, Director, Rosalyn Thibodeaux Fitch, Director, Linda Todd, Director, Terdema L. Ussery, Director, Wayland Walker, Director, James Washington, Director, Tanya Watkins, Director, Kim Whitaker, Director, Annie M. Williams, Director, Lisa Young, Director, Zenetta S. Drew, Executive Director recover their costs of this appeal, if any, from appellants Vince Fudzie, Individually, and TMV, LLC d/b/a Triune. Judgment entered December 21, 2012.
________________________
CAROLYN WRIGHT
CHIEF JUSTICE