Opinion
No. 07-17-00082-CV
05-31-2017
TOMMY L. PARKER, APPELLANT v. ETB MANAGEMENT, LLC, ET AL., APPELLEE
On Appeal from the 237th District Court Lubbock County, Texas
Trial Court No. 2016-523 ,214, Honorable Les Hatch, Presiding
MEMORANDUM OPINION OF DISMISSAL
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Pending before the court is the motion of ETB Management, LLC to dismiss the appeal of Tommy L. Parker. The latter attempts to appeal an order dismissing his lawsuit against ETB. The trial court dismissed Parker's suit because he twice had been declared a vexatious litigant and failed to obtain permission to sue from the local administrative judge. The trial court also observed that "[t]his Order of Dismissal is issued pursuant to Texas Practice and Remedies Code § 11.1035(b) and may not be appealed." ETB now argues that we lack subject-matter jurisdiction to entertain the appeal. Though ETB served a copy of its motion to dismiss upon Parker on May 9, 2017, he has not filed any response to it. We dismiss.
Statute directs the Office of Court Administration to post on its website a list of vexatious litigants who must obtain prior approval from a local administrative judge before filing a civil suit. TEX. CIV. PRAC. & REM. CODE ANN. § 11.104(b) (West 2017). According to that list, of which we take judicial notice, see Douglas v. Am. Title Co., 196 S.W.3d 876, 878 n.2 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (taking judicial notice of the vexatious litigant list), Parker was adjudicated a vexatious litigant in the years 2001 and 2006.
Per § 11.101 of the Texas Civil Practice and Remedies Code, "[a] court may, on its own motion or the motion of any party, enter an order prohibiting a person from filing, pro se, a new litigation in a court to which the order applies . . . without permission of the appropriate local administrative judge . . . to file the litigation if the court finds, after notice and hearing . . . that the person is a vexatious litigant." TEX. CIV. PRAC. & REM. CODE ANN. § 11.101(a) (West 2017).
Given Parker's status as a vexatious litigant, the court clerk was prohibited from filing his suit against EBT unless he first obtained an order from the local administrative judge "permitting the filing." Id. § 11.103(a) (stating that "a clerk of a court may not file a litigation, original proceeding, appeal, or other claim presented, pro se, by a vexatious litigant subject to a prefiling order under Section 11.101 unless the litigant obtains an order from the appropriate local administrative judge described by Section 11.102(a) permitting the filing"). Such an order was not obtained by Parker, but the action was nonetheless filed by the clerk. That mistake was brought to the trial court's attention, and it held a hearing on the matter. And because Parker had yet to obtain the requisite pre-filing order when the hearing was convened, the trial court not only dismissed the suit but declared that its order was non-appealable.
As indicated by the trial court, statute provides that an order dismissing litigation mistakenly filed by a clerk may not be appealed. Id. § 11.1035(c). In deeming its dismissal order non-appealable, the trial court necessarily concluded that the district clerk mistakenly filed Parker's lawsuit. That determination not only triggered the application of § 11.1035(c) but also affects our ability to proceed.
Simply put, our appellate jurisdiction depends upon the existence of an appealable order. See Ricks v. Dorsey, No. 03-16-00830-CV, 2017 Tex. App. LEXIS 3292, at *1 (Tex. App.—Austin Apr. 14, 2017, no pet.) (mem. op.) (stating that a court of appeals may not exercise appellate jurisdiction without a final judgment or an otherwise appealable order); Ex parte Dilworth, No. 03-16-00826-CR, 2017 Tex. App. LEXIS 1849, at *1 (Tex. App.—Austin Mar. 7, 2017, no pet.) (per curiam) (mem. op.) (holding that a written and signed appealable order is a prerequisite to invoking the jurisdiction of an appellate court). We do not have one here due to § 11.1035(c). And, though this circumstance was made known to Parker via EBT's motion to dismiss on May 9, 2017, he has filed no response or otherwise attempted to explain why we have jurisdiction to entertain his appeal. See TEX. R. APP. P. 10.3(a) (stating that an appellate court should not hear or determine a motion until ten days after its filing); TEX. R. APP. P. 42.3(a) (stating that an appellate court may dismiss an appeal for want of jurisdiction upon the motion of a party). Consequently, we dismiss the appeal for want of jurisdiction.
Per Curiam