Judicial Silence: Pro Se Harriet Nicholson Renews Her Request to Vacate Void Judgments

MOTION TO VACATE VOID JUDGMENTS FOR LACK OF SUBJECT MATTER JURISDICTION

 IN CASES

 02-19-00085-CV AND 02-20-00103-CV

NOV 8, 2021 | REPUBLISHED BY LIT: NOV 9, 2021

A court has jurisdiction to determine whether it has jurisdiction. Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996). Courts of appeals’ jurisdiction is comprised of subject matter jurisdiction and personal jurisdiction; in other words, [Second Court of Appeals] jurisdiction consists of the authority to address and determine the merits of particular legal issues involving specific types of litigants. Olivo, 918 S.W.2d at 522. Thus, “[e]stablishment of jurisdiction by law and invocation or attachment of jurisdiction in accordance with procedural rules are two distinct concepts.” Id. at 522-23; see also Bayless, 91 S.W.3d at 803 n.2.

As the Olivo Court explained:

Examples of laws that establish jurisdiction of courts of appeals are Tex. Const. Art. V, § 1 (courts in which judicial power is vested), Tex. Const. Art. V, § 6 (courts of appeals); V.T.C.A. Gov’t Code §§ 21.001 (inherent power and duty of courts), 22.220 (civil jurisdiction), 22.201 (courts of appeals districts), 22.221 (writ power), 73.001-73.002 and 22.202(i) (transfer of courts of appeals’ cases); and Articles 4.01 (courts with criminal jurisdiction) and 4.03 (courts of appeals), V.A.C.C.P.. . . The Rules of Appellate Procedure do not establish courts of appeals’ jurisdiction; they provide procedures which must be followed by litigants to invoke the jurisdiction of the courts of appeals so a particular appeal may be heard.

With all due deference and respect to the Court, Justices Bassel, Gabriel, Wallach confuses subject matter jurisdiction with personal jurisdiction in case 02-19-00085-CV. See Tex. Ass’n of Business v. Air Control Bd., 852 SW 2d 440, 477 – Tex: Supreme Court 1993 (“Justice Doggett confuses subject matter jurisdiction with personal jurisdiction. Only the latter can be waived when uncontested. See Tex. R.Civ.P. 120a.” 852 S.W.2d at 444 n. 5.)) As well, Justices Bassel, Gabriel, Wallach confuses the “establishment of jurisdiction by law” and invocation or attachment of jurisdiction in accordance with procedural rule.

Appellate jurisdiction is never presumed. Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex.App.-Dallas 2009, no pet.). Unless the record affirmatively shows the propriety of appellate jurisdiction, we must dismiss. Id.

This Court’s jurisdiction is established exclusively by constitutional and statutory enactments. See, e.g., Tex. Const. art. V, § 6; Tex. Gov’t Code Ann. § 22.220 (Vernon Supp.2009). Unless one of the sources of our authority specifically authorizes an interlocutory appeal, we only have jurisdiction over an appeal taken from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001); N.E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966). A judgment is final if it disposes of all pending parties and claims in the record. Guajardo v. Conwell, 46 S.W.3d 862, 863-64 (Tex.2001) (per curiam); Lehmann, 39 S.W.3d at 195.

“A severance order itself is not a final judgment.” Allen Parker Co. v. Trustmark Nat. Bank, 14-11-00027-CV, 2012 WL 8017011 (Tex. App.-Houston [14th Dist.] Feb. 16, 2012, no pet.) (mem. op.) citing Beckham Group, P.C. v. Snyder, 315 S.W.3d 244, 245 (Tex. App.-Dallas 2010, no pet.); Stewart v. USA Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 (Tex. 1994) (judgment must sufficiently define and protect the rights of all litigants or provide definite means of ascertaining such rights so that ministerial officers can carry the judgment into execution without ascertainment of facts not contained in judgment); see also Foster v. Little Motor Kar Co., 290 S.W. 228, 230 (Tex. Civ. App.-Dallas 1926, no writ) (“To constitute a final judgment from which an appeal will lie, the court must, at the time of the order and as a part thereof, finally determine and adjudicate the rights of the parties. There is no such thing in our procedure as an automatic judgment.”).

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A severance order that does not dispose of all parties and claims is a nonappealable interlocutory order. Beckham Group, P.C. v. Snyder, 315 S.W.3d 244 (Tex.App.-Dallas 2010, no pet.; Balistreri v. Remax Realty, No. 05-10-00611-CV, 2011 WL 149984 (Tex. App.-Dallas Jan. 19, 2011, no pet.) (mem. op.).

A court’s jurisdiction contains two elements: (1) jurisdiction of the subject matter and (2) jurisdiction of the person. The first element is established by operation of law through the constitutional and statutory provisions that enumerate the kinds of cases the court can entertain.

Federal Underwriters Exchange v. Pugh, 141 Tex. 539, 174 S.W.2d 598, 600 (1943). The second element is established either by a litigant’s voluntary entry into the court or by the serving of process on the litigant in accordance with state procedures consistent with due process. Colson v. Thunderbird Bldg. Materials, 589 S.W.2d 836, 839-840 (Tex.Civ.App.—Amarillo 1979, writ ref’d n.r.e.). If one of the elements is missing, the court’s judgment is subject to collateral attack and any judgment or order rendered by the court is void. Austin Independent School District v. Sierra Club, 495 S.W.2d 878, 881 (Tex.1973).

The Texas Supreme Court held in Tullos v. Eaton Corp., 695 S.W.2d 568 (Tex. 1985): The question of jurisdiction is fundamental and can be raised at any time.

Cox v. Johnson, 638 S.W.2d 867, 868 (Tex. 1982). The court of appeals has erred in assuming jurisdiction over the present matter because an order on a plea of privilege which is taken and perfected after September 1, 1983, is not a final, appealable judgment. Tex.Rev.Civ.Stat.Ann. art. 1995, § 4 (Vernon Supp.1985). This court has jurisdiction to vacate the judgment of the court of appeals when it erroneously exercises its jurisdiction. Baker v. Hansen, 679 S.W.2d 480 (Tex.1984); McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957).

It is reversible error for an intermediate appellate court to erroneously exercise its jurisdiction. See Tullos, 695 S.W.2d at 568-69. As a matter of law, the Second Court of Appeals assuming appellate jurisdiction over non-appealable interlocutory orders in case 02-19-00085-Cv and 02-19-00103-CV was fundamental error resulting in void judgments subject to collateral attack.

PRAYER

Appellant prays this Court vacate the void judgments rendered in case 02-19-00085-CV and 02-19-00103-CV for lack of subject matter jurisdiction in the interest of justice, fairness, and due process.

Respectfully submitted,

/s/ Harriet Nicholson

CERTIFCATE OF CONFERENCE

On November 8, 2021, I certify I conferred with counsel of record referencing the merits of the foregoing motion, they are opposed.

/s/ Harriet Nicholson

CERTIFICATE OF SERVICE

            On November 8, 2021, I certify I served all counsel of record via efiletexas.gov.

/s/ Harriet Nicholson