John Green v. Memorial Park Medical Center, Inc. ( 2015 )

ACCEPTED
03-15-00141-CV
4624767
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/24/2015 3:41:17 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00141-CV
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
IN THE THIRD COURT OF APPEALS 3/24/2015 3:41:17 PM
JEFFREY D. KYLE
AUSTIN, TEXAS Clerk
JOHN GREEN,
Appellant
v.
MEMORIAL PARK MEDICAL CENTER, INC.
Appellee
Appealed from 126th Judicial District Court of Travis County, Texas
APPELLEE'S MOTION TO DISMISS APPEAL
Oral Arguments Requested
Frederick F. Hoelke
Attorney at Law
State Bar No. 09775600
26545 IH-10 West
Boerne Texas 78006
fredhoelke@aol.com
(210)-444-0999 Telephone
(210)-787-3881 Facsimile
Appellee's Motion to Dismiss Appeal For Lack of Jurisdiction Pursuant to Rule 42.3a of 1
the Texas Rules ofAppellate Procedure
APPELLEE'S MOTION TO DISMISS FOR LACK OF JURISDICTION
Comes Now, Appellee, Memorial Park Medical Center, Inc., and asks the
Court to dismiss Appellant John Green's appeal or, in the alternative, to affirm the
trial court's judgment.
RELIEF REQUESTED
Dismiss this appeal pursuant to Rule 42.3 a of the Texas Rules of Appellate
Procedure.
INTRODUCTION
1. Appellant's name is John Green; Appellee's name is Memorial Park Medical
Center, Inc.
2. The 126th Court of Travis County, Texas signed the final judgment in the
underlying case: Memorial Park Medical Center, Inc. v. John Green, Cause No.
D-1-GN-14-000373 on March 13, 2014 in favor of Appellee and against Appellant.
PROCEDURAL HISTORY
3. 126th District Court entered a Temporary Restraining Order against John
Green and his counsel on the 7th day of February, 2014.
4. A hearing was set by Appellant challenging the Temporary Restraining
Order and setting Appellants motions to Dismiss for Lack of Jurisdiction, Request
for Sanctions, and Motion to Transfer Venue for the 18th day of February 2014.
Appellee's Motion to Dismiss Appeal For Lack of Jurisdiction Pursuant to Rule 42.Ja of 2
tlie Texas Rules ofAppellate Procedure
5. All the appellant's motions were heard and vigorously disputed by the court;
however, no order denying the motions was entered. The trial court extended the
injunction to the hearing set on the 4th of March, 2014.
6. On the 4th day of March, 2014 the trial court heard the Appellant Green's
Motion to Dismiss for Lack of Jurisdiction, Request for Sanctions, Motion to
Transfer Venue and Motion to Reconsider.
7. After a full hearing, inclusive of exhaustive arguments of counsel, the 126th
District Court denied appellant Green's motions.
8. The trial court entered a final judgment on the 13th day of March, 2014 in
the form of a permanent injunction. A copy is attached as Exhibit 1. The trial
court's final judgment thereby resulted in preventing Defendant Green from
executing on its Abstract of Judgment.
9. On the 18th day of March, 2014 Appellee and Appellant both received a fax
from the office of the District Judges, 1261h District Court, which was a copy of
the final order entered on the 13th day of March, 2014.
10. On the 14th day of April 2014, Appellee, by oversight, filed an amended
petition urging a new cause of action; tortious interference with contract. This was
done without leave of court and 31 days after final judgment was entered.
11. In addition, the Appellee raised a claim under§ 12.02 of the Property Code.
However, this section is not a separate cause of action but is only a remedy
Appellee's Motion to Dismiss Appeal For Lack of Jurisdiction Pursuant to Rule 42.3a of 3
the Texas Rules ofAppellate Procedure
associated with Trespass To Try Title cases, Suits to Quiet Title and I or Slander of
Title. No cause of action had been filed by the Appellant herein while the trial
court still had jurisdiction.
12. If Appellant had filed a Motion for a New Trial during the first thirty (30)
days after the March 13th final judgment, the trial court would have maintained
jurisdiction for an additional 75 days. As no Motion was filed by the Appellant
during the thirty day period of time after final judgment, the remedy of filing a
motion for a new trial, had it been exercised, would have expired on the 27th of
May, 2014, when the court would have lost plenary power 75 days after the March
13, 2014 Final Judgment. Appellant did nothing until July 16, 2014 when
appellant filed a motion for summary judgment.
13. The trial court lost plenary power on the 27th of May, 2014.
14. Assuming for arguendo' s sake that the appellant was not notified of the
entry of the final order, his last date to file a motion for new trial or give notice of
appeal was July 11, 2014.
1
15. The appellant lost his ability to appeal this matter 30 days from the 90 h day
following the entry of the final appealable order March 13th 2014, pursuant to Rule
306 a (4) which was July 11, 2014.
16. Appellant Green failed to file a motion for new trial and/or notice of appeal by
the 11th day of July, 2014.
Appellee's Motion to Dismiss Appeal For Lack of Jurisdiction Pursuant to Rule 42.Ja of 4
tlie Texas Rules ofAppellate Procedure
17. On the 19th day of September 2014, Appellant Green, recognizing that a
final judgment had been entered, filed a motion to clarify order(s) or Defendant's
Motion For Judgment, Nunc Pro Tune. This was denied by the trial court on the
9th day of October and entered on the 30th day of October, 2014. A true and
correct copy is attached as Exhibit 2.
18. The effect being the trial court's recognition that March 13 1h, 2014 was in
fact the final judgment.
19. Yet another motion was filed by the Appellant on November. 10th, 2014
which was amended on the 22nd day of November 2014 and heard on the 9th day
of December. The relief requested was for an early appeal which was a
disingenuous way of asking the trial court to extend its plenary jurisdiction and
requesting a trial setting on the remaining issues in the case. The motion was
denied as to the early appeal.
20. Appellee, looking at its pleadings and the prior rulings of the trial court,
determined there was nothing left to try but in essence a remedy motion pursuant
to the Property Code § 12.00 et seq and decided to dismiss the pending remedy,
which it did February 2nd 2015.
21. Appellant, having never filed a request for affirmative relief and/or a cause
of action in the form of a counter claim during the time allotted by the Texas Rules
of Civil Procedure, did not have a justiciable cause for the trial court to determine.
Appellee's Motion to Dismiss Appeal For Lack of Jurisdiction Pursuant to Rule 42.3a of 5
tlte Texas Rules ofAppellate Procedure
22. On the 3rd day of February, 2015, Appellant Green, through his counsel,
sent a letter to the trial court requesting that the court clarify the order of dismissal.
See a true and correct copy which is attached as Exhibit 3
23. The trial court responded to Appellant Green's letter with a letter of its own,
dated February 18th, 2015; a true and correct copy of which is attached as Exhibit
4. The trial court's letter states very clearly, because of the prior orders, that the
court cannot do anything and therefore reinforces the trial court's prior ruling that
there was a judgment rendered on the 13th of March, 2014 which has become final
and has never been timely challenged. Accordingly, any issues of contention
brought to the trial court after the court has lost its plenary powers become res
judicata.
24. Appellant, this year, has filed yet another two pleadings with the trial court;
one to modify a judgment and two to request findings of fact and conclusions of
law from this Court . These were not ruled on because the trial court had no
plenary jurisdiction.
25. Appellee attaches as Exhibit 5 an affidavit which authenticates the trial
court documents used to demonstrate the procedural history of this appeal.
ARGUMENT & AUTHORITIES
26. The Court has the authority under Texas Rules of Appellate Procedure 42.3
(a) to dismiss an appeal for lack of jurisdiction.
Appellee's Motion to Dismiss Appeal For Lack of Jurisdiction Pursuant to Rule 42.Ja of 6
tlie Texas Rules ofAppellate Procedure
27. The court should dismiss the appeal because Appellant filed the notice of the
appeal after the deadline. See Eddins v. Borders,71 S.W.3d 368 371 (Tex. App.-
Tyler 2001, pet. Denied). It is now too late for Appellant to ask for an extension
under Texas Rules of Appellate Procedure 26.3 See Tex. R. App. P. 42.3(a);
Verburg v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).
28. The court rendered a "final judgment" on March 13, 2014 in favor of
Appellee and against Appellant. The hearing on the permanent injunction is a full
trial of the issues in applicant's petition. Citizens State Bank v. Caney Investments,
746 S.W.2d 477, 478 (Tex. 1988). See Exhibit 1.
29. The court reaffirmed that a "final judgment" was rendered on March 13,
2014 pursuant to its October 30, 2014 Order Denying Defendant's Motion to
Clarify Orders or Defendant's Motion for Nunc Pro Tune. See Exhibit 2.
30. An untimely request for finding of fact and conclusions of law was filed by
Appellant on February 24, 2015.
31. The notice of appeal was due on April 14, 2014. A request to extend the
time to file the notice of appeal was not requested at any time by Appellant. This
Court should dismiss Appellant's appeal for lack of jurisdiction. In re K.A.F., 160
S.W.3d 923, 927 (Tex. 2005) (appellate court lacks jurisdiction over untimely
appeal, and dismissal is proper remedy); Wilkins v. Methodist Health Care System,
160 S.W.3d 559, 564 (Tex. 2005) (accord); see also, In re Estate of Padilla, 103
Appellee's Motion to Dismiss Appeal For Lack of Jurisdiction Pursuant to Rule 42.Ja of 7
tlie Texas Rules ofAppellate Procedure
S.W.3d 563, 566 (Tex. App.-San Antonio 2003, no pet.) (untimely appeal
dismissed for lack of jurisdiction despite late notice of final judgment). It is now
too late for Appellant to ask for an extension under Texas Rule of Appellate
Procedure 26.3. TEX. R. APP. P. 4.2(a); Verburg! v. Dorner, 959 S.W.2d 615, 617
(Tex. 1997).
32. Appellant filed the notice of appeal on March 3, 2015, almost a year after
the deadline to file it and no request to extend the deadline was ever filed by
Appellant.
33. Anticipating the arguments of appellant to claim no notice with respect to
the final judgment, Appellee submits that even Texas Rules of Civil Procedure,
Rule 306a (4) bars the appeal.
34. This court should dismiss this appeal for lack of jurisdiction. Appellant
cannot confer jurisdiction upon this court nor can he survive the constraints of Rule
329 b and 306a (4) of the Texas Rules of Civil Procedure.
35. Appellee is entitled to damages for frivolous appeal under Texas Rule of
Appellate Procedure 45. The Court may assume that Appellant brought this appeal
solely for delay if it finds that Appellant prosecuted this appeal without observing
the minimal procedural requirements for an appeal. See Hennigan v. Hennigan,
677 S.W.2d 495, 496 (Tex. 1984); Compass Exploration, Inc. v. B-E Drilling, Co.,
60 S.W.3d 273, 279-80 (Tex. App.-Waco 2001, no. pet).
Appe/lee's Motion to Dismiss Appeal For Lack of Jurisdiction Pursuant to Rule 42.3a of 8
tlie Texas Rules ofAppellate Procedure
CONCLUSION
36. Appellant has been informed repeatedly that a final judgment was rendered
on or about March 13, 2014, and as evident, all of Appellant's subsequent motions
have been denied with the trial court continuing to inform Appellant that a final
judgment had been rendered. Appellant has now continued his vexatious litigation
on appeal despite the fact that Appellant is attempting to file his appeal almost a
year past the deadline.
PRAYER
For these reasons, Appellee, Memorial Park Medical Center, Inc., prays that
this Court grant its motion to dismiss Appellant's appeal or, in the alternative, to
affirm the trial court's judgment and grant Appellee damages for a frivolous appeal
and grant Appellee judgment for costs.
Appellee's Motion to Dismiss Appeal For Lack of Jurisdiction Pursuant to Rule 42.3a of 9
the Texas Rules ofAppellate Procedure
Respectfully submitted,
26545 IH 10 West, Suite 100
Boerne, Texas 78006
(210) 444-0999 Telephone
(210) 444-0996 Facsimile
fredhoelke@aol.com
Attorney for Appellee
~ff~h'~
William W. Ruth '
1406 E. Main, Suite 200
Fredericksburg, TX 78624
325-642-9802 - Phone
325-641-0527 - Fax
Attorney for Appellee
1
Signed by permission
Appe/lee's Motion to Dismiss Appeal For Lack of Jurisdiction Pursuant to Rule 42.Ja of 10
the Texas Rules ofAppellate Procedure
Certificate of Conference
I ce11ify that I have conferred with Appellant's counsel, Robert Reich, by
phone and have attempted in good faith to reach an agreement about the subject
matter of this motion. We have been unable to reach an agreement because Mr.
Reich believes that this court has jurisdiction over Mr. Green's appeal
``
Certificate of Service
I ce11ify that on the 24 111 day of March, 2015, that I served, pursuant to rule
9.5 of the Texas Rules of Appellate Procedure, a true and correct copy of this
motion to dismiss for lack of jurisdiction on Mr. Robert Reich, Counsel for John
Green the appellant via electronic mail and by facsimile.
Appel/ee's Motion to Dismiss Appeal For Lack of Jurisdiction Pursuant to Rule 42.3a of 11
tlze Texas Rules ofAppellate Procedure
William Ruth 3256410527 p.3
William Ruth BK~Al13 PG139 3256410527 p.2
Notice sent:
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CAUSE NO. IJ..1-0N..14-000373
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.MEMORJAL PARK MEDICAL CENTER, INC § IN THE DISTRICT COURT
§
§
vs. § ll6TH JUDICIAL COURT
§
JOHN GREEN § TRAVIS COUNTY, TEXAS
ORDER
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On the 4 111 day of Ma.rob, 2014, came to be considered Plaintiff's motion for pe~
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"1ii c
injunction and Defendant~s motioos to dismiss for Jack of jurisdiction, request for sanctdii
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transfer ofvenue, and mationfor reconsideration. The court after hearing arguments ofcounsel``
"CS ......
considering the pleadings and 1he evidence was of the opinion that Plainti~s motion for permm:ii"P
injunction should be ~ted, and denied Defendant's mctions..
IT IS, THEREFORE, ORDERED, ADJUDGED AND DESCRIBED that Plaintifrs motion
for pennanenc injunction be granted, accordingly, and Dcfendant..s motions be denied.
-41v
SIGNED this f S day of March, 2014~
Exhibit 1
William Ruth 3256410527 p.2
w1111am t.
Robert E. Reich
Attorney for Defendant
Green, John: Order for Non-Suit Page I of l
......... ·.······
·-
To: Page 6 of 23 2015-02-04 16:59:32 (GMT) From: Haynes Law Finni Reich Law Office
VA '
• Jt11 Court ofAppears /\1andale •
THE STATE OF TEXAS
To THE 35TH DISTRICT COURT OF BROWN COUNTY, GREETINGS:
BEFORE our Court of Appeals for the Eleventh District of Texas, on June 27. 2013 and
JuJy 25, 2013, the cause upon appeal to revise or reverse your judgment between
Memorial Park Medical Center, Inc.
11th Court of Appeals No. 11-11-00159-CV and
35th District Court Case No. CV0904121
John Green
. .
.'was determined; and therein our said Court made its order in these words:
...... .._··
a
"John Green has filed remittitur in compliance with this court's opinion dated
June 2 7, 2013. In accordance with this court's opinion, we modify the trial court's
judgment to reduce the award of damages for vvork performed by $700, making the
amount ofdamages due to Green for Vlork pe1formed equal $9, 020. As modified,
the judgment of the trial court is o.ffirmed. The costs incurred by reason of this
appeal are taxed against Memorial Park Medical Center, Inc. ,,
WHEREFORE WE COMMAND YOU To observe the order of our said Court of
Appeals for the Eleventh District of Texas, in this behalf, and in all things to have it duly
recognized. obeyed and executed.
WITNESS, the HON. JIM R. WRIGHT. Chief Justice of
our said Court. with the seal thereof annexed at the
City of Eastland, on January 3. 2014.
``"-•· .. ,14 ~
o~ff~
SHERRY W1U~!AMSON 1 CLERK
By: Cheryl Busk, Deputy
EXHIBIT "C''
To: Page 7 of 23 2015-02-04 16:59:32 (GMT) From: Haynes Law Firrn/ Reich Law Office
M~R-18-2014 10:69 P.OU~UU:&
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MIMORIAL PA.RI( MRDICAL CENTER, IMC I IN TlfE DlsraJCT COURT
I
vs.
JOHNGRIEN I I
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Oa the 4<1; ~ of March, 2.014, clnle to be @mideRMI Pltiiiililrs tQOlil;n: for ``~
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il\junctiOo and Derendsnt,s ·moti()O$ • dlsmb:s ·for lack of jurisau:liun., · £``- for saned``
tram!cr ofvoauo, and mocioa for icconsid.cndion. The: eourt after heating qumersb ofcounteland
contlderjqg d\e-pleeclinp and the mdm\ce WU oftU opiDioll tJULt Plaintift'I motion fot plft\W!et\I
injunction should be patr:d. aad daitd Dcfi:adant'• modom.
1T IS, THF.REFOR.E;OltDERED, AD1000£I>AND DESCJUBED that Plaiatitra motion
for pamanem illj'111ttioA be lflllted. KCOrdingly, aasd. Dcnndlat's motions be denied.
. r"l~
SIGNED this~ day of Marcb, 2014.
.
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.... ·. . . . -·.
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RJDGE PRESIDING~ .
TOTAL P.002
To: Page 8 of 23 2015-02-04 16:59:32 (GMT) From: Haynes Law Firrlll Reich Law Office
NO. D-1-GN-14-000373
MEMORIAL PARK MEDICAL § IN THE DISTRICT COURT
CENTER, INC. §
Plaintiff, §
§
v. § 126TH JUDICIAL DISTRICT
§
JOHN GREEN §
Defendant. § OFTRAVISCOUNTY,TEXAS
DEFENDANf.$.;MOTION~TffCLARIFV~:ORDERS OR DEFENDANT'S MOTION FOR
JUDGMENT NUNC PRO TUNC
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Defendant, John Green, Movant herein, and brings this Motion to Clarify
Orders or Motion for Judgment Nunc Pro Tune. In support hereof, Movant shows the
following:
I.
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To: Page 9 of 23 2015-02-0416:59:32 (GMn From: Haynes Law Firm/ Reich Law Office
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