
NO. 07-06-0114-CR



IN THE COURT OF APPEALS



FOR THE SEVENTH DISTRICT OF TEXAS



AT AMARILLO



PANEL A



SEPTEMBER 27, 2006

______________________________



PARESH BABUBHAI DESAI, APPELLANT



V.



THE STATE OF TEXAS, APPELLEE

_________________________________



FROM THE 108
TH
 DISTRICT COURT OF POTTER COUNTY;



NO. 51,340-E; HONORABLE ABE LOPEZ, JUDGE

_______________________________





Before REAVIS and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Pending before this Court is appellant’s motion to dismiss his appeal.  Appellant and his attorney both have signed the document stating that appellant withdraws his appeal.  Tex. R. App. P. 42.2(a).  No decision of this Court having been delivered to date, we grant the motion.  Accordingly, the appeal is dismissed.  No motion for rehearing will be entertained and our mandate will issue forthwith.

James T. Campbell

        Justice



Do not publish.
kground 

On August 20, 2003, Zurich filed an action against Gutierrez and Miguel Gomez seeking damages arising from a car accident.   On December 5, 2005, the trial court granted a default judgment against Gomez and proceeded on the case as to Gutierrez.  On July 12, 2006, Zurich filed a Motion to Sever requesting the trial court sever the judgment against Gomez into a separate proceeding since all causes of action asserted against Gomez had been disposed.  On the same date, Zurich also moved for summary judgment against Gutierrez.  On August 8, the trial court granted Zurich’s Motion to Sever and signed a prepared severance order; however, the trial court exchanged Gutierrez’s name for Gomez’s name through most of the prepared order, but not all instances.  The resulting order created a new cause number, 03-1179A, and stated that “all causes of action pled by Plaintiff against Defendant Gomez be severed into a new cause of action with the following cause number and style: Cause No. 03-1179A; Zurich American Insurance Company . . . v. Elizabeth Gutierrez . . . .”  

A review of the clerk’s record in this cause of action does not contain either an order granting Zurich’s summary judgment nor Gutierrez’s motion for new trial filed after August 8, 2006. However, according to Zurich’s response to Gutierrez’s Motion for New Trial, which is contained in the clerk’s record, the trial court granted Zurich’s motion for summary judgment on August 8 and Gutierrez filed a motion for new trial on September 7.  Although no motion for a new trial after August 8 is contained in the clerk’s record, an order dated November 14, 2006 denies Gutierrez’s motion for new trial.   Gutierrez filed notice of appeal on December 13.  

Law and Analysis

Subject matter jurisdiction is essential to the authority of a court to decide a case.  
Tex. Ass’n of Bus. v. Tex. Air Control Bd.
, 852 S.W.2d 440, 443 (Tex.1993).   Subject matter jurisdiction is never presumed and cannot be waived.  
Id
. at 443-44.  Subject matter jurisdiction may be raised for the first time on appeal.  
Id
. at 445.  The issue may be raised 
sua sponte
 by a court, and is a legal question subject to 
de novo
 review.  
See
 
Mayhew v. Sunnyvale
, 964 S.W.2d 922, 928 (Tex.1998).  
Standing is a component of subject matter jurisdiction; it cannot be waived.  
See
 
Tex. Ass’n of Bus.
, 852 S.W.2d at 443-44.

Generally, an ambiguous order may be construed in light of the motion upon which it was granted.  
Lone Star Cement Corp. v. Fair
, 467 S.W.2d 402, 404 (Tex. 1971).  The same rules of interpretation apply in construing the meaning of a court order or judgment as in ascertaining the meaning of other written instruments.  
Id
. 404-05.  The entire contents of the instrument and record should be considered, and the instrument is to be read as a whole.  
Id
. at 405. 

In reviewing the record, it would appear that the trial court severed Zurich’s cause of action against Gutierrez into the new cause of action, cause no. 03-1179A.  Therefore, Gutierrez is no longer a party in the present cause of action and, thus, does not have standing to file an appeal.  
See
 
Buckholts Indep. Sch. Dist. v. Glaser
, 632 S.W.2d 146, 150 (Tex.1982)
 (
appealing party cannot complain of errors that do not injuriously affect its rights or that merely affect the rights of others).  Hence, we conclude that we do not have jurisdiction to consider Gutierrez’s appeal in this cause.

Conclusion

For the foregoing reasons, we dismiss for want of jurisdiction.  	



Mackey K. Hancock

                 Justice





