Opinion
No. 05-11-00153-CV
Opinion Filed March 4, 2011.
On Appeal from the Probate Court No. 2, Dallas County, Texas, Trial Court Cause No. PR09-03183-P2.
Before Justices MURPHY, FILLMORE, and MYERS.
MEMORANDUM OPINION
The notice of appeal in this case recites the appeal is of an August 13, 2010 default judgment. The record before us, however, contains no such judgment; instead, it contains an August 13, 2010 order striking appellant's pleadings and concluding appellee "is entitled to a default judgment against [appellant], which [appellee] may obtain at the next available setting of this Court." No further trial court action appears to have occurred.
Generally, a party may appeal only from a final judgment, which is a judgment that disposes of all pending parties and claims in the record. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Because the August 13, 2010 order specifically left appellee's claims pending against appellant "to the next available setting," we questioned our jurisdiction over this appeal. By letter dated February 11, 2011, we directed appellant to file, within seven days, a letter brief addressing our concern. We directed appellee to file any response no later than February 25, 2011. To date, neither party has responded.
Appellate jurisdiction is never presumed. Brashear v. Victoria Gardens of McKinney, LLC, 302 S.W.2d 542, 546 (Tex. App.-Dallas 2009, no pet.) (op. on reh'g). Unless the record affirmatively shows our jurisdiction, we must dismiss. Id. The record here does not show a final judgment or otherwise affirmatively show we have jurisdiction. Accordingly, we dismiss the appeal.