Richard Kirby and Julie Kirby v. Benny Fletcher

NO. 12-21-00160-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RICHARD KIRBY AND JULIE KIRBY, § APPEAL FROM THE
APPELLANTS

V. § COUNTY COURT AT LAW

BENNY FLETCHER,
APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION
PER CURIAM
Richard and Julie Kirby, acting pro se, filed a notice of appeal to challenge an order of
the County Court at Law in which it concluded that it retains jurisdiction to issue a writ of
possession and ordered the trial court clerk to issue a writ of possession in accordance with the
final judgment. 1 On September 29, 2021, this Court notified Appellants that the notice of appeal
failed to show the jurisdiction of the Court, namely, the order being appealed is not an appealable
order. See TEX. R. APP. P. 37.2. We further notified Appellants that the appeal would be
dismissed unless the information was amended on or before October 29 to show the jurisdiction
of the Court. See TEX. R. APP. P. 42.3. Appellants amended their notice of appeal to correct
defects in the notice, but failed to respond to this Court’s September 29 jurisdictional notice.
Unless specifically authorized by statute, Texas appellate courts have jurisdiction only to
review final judgments. McFadin v. Broadway Coffeehouse, LLC, 539 S.W.3d 278, 283 (Tex.
2018). “[W]hen a final judgment exists, a subsequent order that has no effect except to enforce
provisions of the judgment does not qualify as another final judgment subject to appeal.” Id. at
284. Thus, “an order for a writ of possession is neither a final judgment nor an appealable

1
Appellants appealed from the final judgment, but we dismissed the appeal for failure to comply with
Section 51.017 of the Texas Civil Practice and Remedies Code. See Kirby v. Fletcher, No. 12-21-00146-CV, 2021
WL 4313862 (Tex. App.—Tyler Sept. 22, 2021, no pet. h.) (mem. op.) (per curiam). Appellants gave notice that
they intend to file a petition for review with the Texas Supreme Court.
interlocutory order.” Neuse v. Nationstar Mortgage, LLC, No. 13-19-00234-CV, 2019 WL
3331643, at *1 (Tex. App.—Corpus Christi July 25, 2019, pet. denied) (mem. op.); see also
Williams v. Ladera, No. 02-21-00104-CV, 2021 WL 2253241, at *1 (Tex. App.—Fort Worth
June 3, 2021, no pet.) (mem. op.) (“county court’s order allowing Ladera to execute its writ of
possession does nothing more than enforce the provisions of the county court’s final judgment
finding Williams guilty of forcible detainer” and was not a final judgment or appealable
interlocutory order). Because the order of which Appellants complain is not a final judgment or
appealable interlocutory order, we dismiss this appeal for want of jurisdiction. 2 See TEX. R. APP.
P. 42.3(a). All pending motions are overruled as moot.
Opinion delivered November 3, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

2
We also note that Appellants filed a petition for writ of mandamus with this Court, which is currently
pending in appellate cause number 12-21-00191-CV.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

NOVEMBER 3, 2021

NO. 12-21-00160-CV

RICHARD KIRBY AND JULIE KIRBY,
Appellant
V.
BENNY FLETCHER,
Appellee

Appeal from the County Court at Law
of Smith County, Texas (Tr.Ct.No. 73211)

THIS CAUSE came on to be heard on the appellate record, and the same
being considered, it is the opinion of this Court that it is without jurisdiction of the appeal, and
that the appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that
this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision
be certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.