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Twin Creeks Golf Group, L.P. v. Sunset Ridge Owners Association, Inc. ( 2015 )


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  •                                                                                            ACCEPTED
03-15-00763-CV
8409054
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/30/2015 1:15:00 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00763-CV
TWIN CREEKS GOLF GROUP, L.P., §                   IN THE THIRD DISTRICT
FILED IN
3rd COURT OF APPEALS
Appellant                 §                                 AUSTIN, TEXAS
§                            12/30/2015 1:15:00 PM
V.                            §                        COURT OF   APPEALS
JEFFREY  D. KYLE
§                                     Clerk
SUNSET RIDGE OWNERS           §
ASSOCIATION, INC.,            §
Appellee.                 §                              AUSTIN, TEXAS
APPELLEE’S RESPONSE TO APPELLANT’S MOTION
TO DISMISS FOR LACK OF JURISDICTION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Sunset Ridge Owners Association, Inc. (referred to herein
as “Appellee”) and files this Response to Appellant’s Motion to Dismiss for Lack
of Jurisdiction, and in support thereof, would show the Court as follows:
ARGUMENT AND AUTHORITIES
1.    The basis for Appellant’s Motion to Dismiss for Lack of Jurisdiction (the
“Motion”) is Appellant’s contention that the Order on Plaintiff’s Traditional
Motion for Partial Summary Judgment (CR253-254), in the underlying case, is not
final and appealable because Appellee inadvertently included reference to Twin
Creeks Property, Ltd. and Twin Creeks Operating Company, L.P. in Plaintiff’s
Second Amended Original Petition (the “Second Amended Petition”) (CR 256-
259) when it was filed. However, neither Twin Creeks Property, Ltd. nor Twin
Creeks Operating Company, L.P. filed an answer or made an appearance in the
underlying case (either before or after Appellee filed the Second Amended
Petition) and Appellee previously dismissed those parties (CR 251-252).
Additionally, Appellee did not request citations for service of process on Twin
Creeks Property, Ltd. and Twin Creeks Operating Company, L.P. after it filed its
Second Amended Petition and never intended to do so. 1                       Accordingly, any
reference to those parties in the Second Amended Petition was purely a clerical
error.2
2.        The general rule is that a judgment is final and appealable only when it
disposes of all parties. However, Texas Courts have also held that,
…there are a substantial number of cases holding that such [general
rule] has no application where the judgment complained of disposed
of all named parties except those who have not been served and filed
no answer. In these cases the judgment was ‘final’ for purposes of
appeal and case stood as if there had been a discontinuance as to the
parties not served.
Gumpp v. Philadelphia Life Ins. Co.,
    562 S.W.2d 885
    , 889 (Tex. Civ. App. — San
Antonio 1978, no writ); Liberty Mutual Ins. Co. v. City of Fort Worth,
    517 S.W.2d 646
    , 647 (Tex. Civ. App. — Fort Worth 1975, no writ); American Trendex Corp. v.
Ultradyne Corp.,
    490 S.W.2d 205
    , 206 (Tex. Civ. App. — Austin, 1973, writ ref’d
1
The facts in this sentence are within the personal knowledge of the attorney signing this
motion. TEX. R. APP. P. 10.2.
2
The facts in this sentence are within the personal knowledge of the attorney signing this
motion. TEX. R. APP. P. 10.2.
2
n.r.e.); Hoover v. Baker,
    507 S.W.2d 299
    , 302 (Texas Civ. App. — 1974, writ ref.
n.r.e.). In American Trendex Corp. v. Ultradyne Corp., the appellee raised the
same issue that Appellant raises in its Motion. American Trendex
    Corp., 490 S.W.2d at 206
    . In that case, the appellee claimed that appellant’s judgment was
interlocutory because the “judgment did not mention, or dispose of, the issues
between appellee and one defendant…” See
    id. However, the 
    Court of Appeals
overruled appellee’s motion because the defendant was not served with process
and did not file an answer in the case. See
    id. The Court 
    stated that “the case
stands as if there had been a discontinuance as to [that defendant], and the
judgment is to be regarded as final for the purpose of appeal.” See
    id. 3. The 
    same holds true in our case. Neither Twin Creeks Property, Ltd. nor
Twin Creeks Operating Company, L.P. was served with the Second Amended
Petition and neither filed an answer or made an appearance. Therefore, the case
stands as if there had been a discontinuance as to Twin Creeks Property, Ltd. and
Twin Creeks Operating Company, L.P. and the Order should be regarded as final
for the purpose of appeal.     Accordingly, this Court should deny Appellant’s
Motion.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Sunset Ridge Owners
Association, Inc. prays the Court deny Twin Creek Golf Group, L.P.’s Motion to
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Dismiss For Lack of Jurisdiction and grant it such other and further relief to which
it may be justly entitled.
Respectfully submitted,
/s/Noel L. Stout
______________________________
Noel L. Stout
nstout@abdlawfirm.com
State Bar No. 24033245
ALMANZA, BLACKBURN & DICKIE, LLP
2301 S. Capital of Texas Hwy., Bldg. H
Austin, Texas 78746
(512) 474-9486
(512) 478-7151 Fax
ATTORNEYS FOR APPELLEE
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
document has been sent via email and certified mail, return receipt requested as
listed below on this the 30th day of December, 2015.
Allen Halbrook
Sneed, Vine & Perry, P.C.
900 Congress Avenue
Suite 300
Austin, TX 78701
(512) 476-1825 – Fax
ahalbrook@sneedvine.com
/s/Noel L. Stout
_________________________________
Noel L. Stout
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