1 John T. Boyd, Chief Ju stice (Re t.), Seven th Court of Appeal s, sittin g by assi gnment.

Tex. Gov ’t Code A nn. §75.0 02(a)(1) (Vernon S upp. 200 4). NO. 07-04-0224-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL E JUNE 1, 2005

______________________________ JERRY HENRY, APPELLANT

v. FLINTROCK FEEDERS, LTD., APPELLEE

_________________________________ FROM THE 84 TH DISTRICT COURT OF HANSFORD COUNTY ; NO. 4669; HON. WILLIAM D. SMITH, PRESIDING

_______________________________ Before QUINN, C.J., REAVIS, J., and BOYD, S.J. 1 Memorandum Opinion In this appeal , appellant Jerry Henry challenges an interlocutory order e ntered by the trial court denying his special appe aranc e filed pursuant to Texas Rule of Ci vil Procedur

e 120a. F or reason s herein after state d, we dis miss the a ppeal as moot. In the suit un derlying t his appeal, appellee Flintrock Feeders, Ltd. (Flin trock) filed suitagainst Henry seeking recovery for amounts allegedly overpaid Henry in a catt le2

purchase transacti on. In re sponse, H enry, a r esident of Arkansas, filed a special appearance alleging that Texas had no pe rsonal jurisdiction over him because all asp ects of the transaction directly involvi ng hi m occurred in Arkansas. Henry brings this appeal from the trial court’s d enial of that spec ial appe arance. See Tex. Civ. Pra c. & Rem. Code Ann. §51 .014(a)(7 ) (Vernon Supp. 20 04-05). Following Henry’s perfection of his a ppeal, th e parties stipula ted to the relevant nonju risdictional facts involved in this case. That stipulation was accepted by the trial cou rt

. On the basis of the stipul at ed facts and while this interlocutory appeal was pending, Flintrockfiled a motion for summary judgment in which it asserted the stipulations removed any genuine issue of material fact and establi shed that it was entitled to judgment as a matter of law. Henry

filed no response to this motion and did not appear at the hearing on the motion. On June 22, 2004, the trial court granted Flintrock summary judgment in the amount of $11,170.94 plus pre- and post-judgment interest, court costs and attorney fees. Because Henry did not appeal this judgment, it hasbecome final as a matter of law. See Tex. R. App. P. 26.1. Following the trial court’s rendition of judgment, Flint rock has file d a motio n to dismiss this appeal in which it contends thi s interlocutory appeal was rendered moot by the trial court’s final judgment. Although given an oppo rtunity to do so, H enry

has not filed a response to the motion. Generally, a judgment must be final in order for a party to pursue an a ppeal of the judgment. See Lehmann v. Har-Con Corp. , 39 S.W.3d 191, 195 ( Tex. 200 1). Howe ver, an interlocutory appeal of the denial of a speci al appearance is statutorily authorized and2 See also Siebenmorgenv. Hertz Corp. , No. 14-97-01012-CV , 1999 Tex. App. Lexis

311 a t 9 (Tex. App.–Houston [14 th Dist.] Jan. 21, 1999, no pet.) (not designa ted fo r publica tion) (if

a plaintiff fails to inform the trial court of section 51.014(b) a nd allows the court to proceed to trial, the plaintiff waives the right to object or request any relief on appeal).

3 Although Henry did file a motion for new trial i n which he asserted the stay as precluding final ju dgme nt, no thing in the record shows that a hearing was held on the motion and, by operation of law, the motion has been overrule d. See Tex. R. Civ. P. 329b(c). 3 stays the comme ncement of trial pe nding re solution of the ap peal. See Tex. Civ. Prac. & Rem. Code

Ann. §51 .014(a)(7 ) & (b) (Ve rnon Sup p. 2004-0 5). Section 51.014(b) allows no room for trial court discretion and, if applicable, a stay must be grant ed by thetrial co urt if req uested. See Lee-Hickman’s Invs. v. Alpha Invesco Corp. , 139 S.W.3d 698, 702 (Tex. App.–CorpusChristi 2004, no pet.); Sheinfeld v. Bellush , 61 S.W.3d 437, 439 (Tex. Ap p.–San A ntonio 2 001, no p et.). However, the fail ure to in form the trial court of the ope ration of this stay waives any error that the trial court may have committed by faili ng to stay the trial

. See Lewis v. Texas Employers’ Ins. Ass’n, 151 Tex. 95, 246 S.W.2 d 599, 60 0 (1952) (a proced ural erro r must ordi narily b e timely presented to the trial co urtso as to allow i t to correc t the procedural e rror). 2 We conclude that any error the trial court committed bynot staying the commencement of the pending resolution of the presen t interlocutory appeal was waived by the fail ure of Henry to timely inform the t ria l court of th e application of the stay p rovision of sectio n 51.014 (b). Additionally, Henry has failed to time ly perfec t a direc t appeal of the su mmary judgment in this case. 3 See Tex. R. App. P. 26.1. Consequently, our review is limited to
a determin ation of wheth e r the summary judgment was void under the circumstances of this case. We conclude that Henry’s waiver of the statu tory

stay removed any bar to the4

trial court’s final judgment. That being true, the final judgment rendered Henry’s interloc utory

appeal moot. See Richards v. Mena, 820 S.W.2d 372, 373 (Tex. 1991) (final judgment moots an appeal of tempora ry injunc tion); Lincoln Property

Co. v. Ko ndos, 110 S.W.3d 712, 716 (Tex. App.–Dallas 2003, no pet.) (final judgment renders moot an appeal of class certifica tion). For the reason we have s tated above, this appeal is moot and must be, and is hereby, dismissed.
John T. Boyd Senior Justice