BILL MCINTYRE v. LEXIS NEXIS (2011)

MEMORANDUM OPINION

By notice of appeal filed June 27, 2011, Bill McIntyre challenges the trial court's denial of his motion to dismiss order appointing receiver and compelling discovery.   Because McIntyre has failed to bring forward a final appealable judgment or order, we dismiss the appeal for want of jurisdiction.   Tex.R.App. P. 42.3(a).

The record reflects the trial court heard McIntyre's motion May 27, 2011.   The record, however, does not contain a copy of any order on the motion, and the district court clerk has informed us no order was in fact signed.   See Tex.R.App. P. 34.5(a)(5) (appellate record must contain copy of court's judgment or appealed order).   Because our jurisdiction is fundamental and invoked only upon the timely filing of a notice of appeal from a signed final judgment or recognized interlocutory order, we directed the parties to file letter briefs addressing our jurisdiction over the appeal.   See Tex.R.App. P. 26.1, 27.1(a);  Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 & n.12 (Tex.2001);  K & S Interests, Inc. v. Tex. Am. Bank/Dallas, 749 S.W.2d 887, 890 (Tex.App.-Dallas 1988, writ denied).   McIntyre responded;  appellee Lexis Nexis did not.

In his letter brief, McIntyre acknowledges the court's ruling was not reduced to writing and signed by the trial court.   He contends, however, that no order is necessary because the court's ruling was recorded by the court reporter.   Alternatively, he argues “the trial judge should be able to sign ․ a Nunc Pro Tunc order.”

A record of the court's ruling by the court reporter, however, is not an acceptable substitute for a written order.   See Capital Fin. & Commerce AG v. Sinopec Overseas Oil & Gas, Ltd., 260 S.W.3d 67, 84 n.21 (Tex.App.—Houston [1st Dist.] 2008, no pet.) (written judgment or order signed by trial judge is official judgment of court) (citing Harrington v. Harrington, 742 S.W.2d 722, 724 (Tex.App.—Houston [1st Dist.] 1987, no writ)).   And, while the trial court may have jurisdiction to sign an order on McIntyre's motion, our jurisdiction cannot be invoked without a signed judgment or order and nothing before us indicates an order is imminent.   See Tex.R.App. P. 25.1(b), 27.1(a);  Ganesan v. Reeves, 236 S.W.3d 816, 817 (Tex.App.—Waco 2007, pet. denied) (appellate court not required to hold appeal open until appealable judgment or order is signed).

Because we have no signed judgment or appealable order, we lack jurisdiction over the appeal and dismiss it.   See Tex.R.App. P. 42.3(a).

110809F.P05

PER CURIAM