Billy C. Whitfield and Carolyn Whitfield v. Charles Thomas Ondrej ( 2015 )


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  •                                                                                                       ACCEPTED
    04-15-00052-CV
    FOURTH COURT OF APPEALS
    SAN ANTONIO, TEXAS
    7/31/2015 6:03:05 PM
    KEITH HOTTLE
    CLERK
    NO. 04-15-00052-CV                          FILED IN
    __________________________________________________________________
    4th COURT OF APPEALS
    SAN ANTONIO, TEXAS
    IN THE FOURTH COURT OF APPEALS                  07/31/15 6:03:05 PM
    SAN ANTONIO, TEXAS                          KEITH E. HOTTLE
    Clerk
    BILLY C. WHITFIELD AND CAROLYN WHITFIELD,
    Appellants
    v.
    CHARLES THOMAS ONDREJ, EDWARD MICHAEL ONDREJ, ELIZABETH ANN
    ONDREJ, EVELYN JEAN ONDREJ, HELEN MARIE ONDREJ, KATHRYN SUE
    ONDREJ, LORAINE ELLEN ONDREJ, PAUL ANTHONY ONDREJ, CAROL K.
    PARIS, AND GENEVIEVE MAHER,
    Appellees
    On Appeal from the District Court
    81st Judicial District
    Karnes County, Texas
    Trial Court Case 12-10-00231-CVK
    MOTION TO DISMISS FOR LACK OF JURISDICTION OR, IN
    THE ALTERNATIVE, FOR A SECOND EXTENSION OF TIME
    TO FILE APPELLEES’ BRIEF(S)
    WILLIAM H. OLIVER                                   JERRY T. STEED
    State Bar No. 15265200                              State Bar No. 19097500
    PIPKIN & OLIVER L.L.P.                              STEED BARKER, PLLC
    1020 N.E. Loop 410, Suite 810                       8610 N. New Braunfels, Suite 705
    San Antonio, Texas 78209                            San Antonio, TX 78217
    Telephone: (210) 820-0082                           Telephone: (210) 829-8833
    Fax No.: (210) 820-0077                             Fax No.: (210) 622-2808
    wholiver@pipkinoliver.com                           jtsteed@steedbarkerlaw.com
    Attorney for Karen Bradley,                         Attorney for Appelles Ondrej and Paris
    Independent Executrix of the Estate
    of Appellee Genevieve Maher
    MOTION TO DISMISS & FOR EXTENSION OF TIME                                            PAGE 1 OF 7
    TO THE HONORABLE JUSTICES OF SAID COURT:
    NOW COME APPELLEES, Charles Thomas Ondrej, Edward Michael
    Ondrej, Elizabeth Ann Ondrej, Evelyn Jean Ondrej, Helen Marie Ondrej, Kathryn
    Sue Ondrej, Loraine Ellen Ondrej, Paul Anthony Ondrej, Carol K. Paris and Karen
    Bradley, Executrix of the Estate of Genevieve Maher, and files this Motion to
    Dismiss For Lack of Jurisdiction and, in the Alternative, for a Second Extension of
    Time to File Appellees’ Brief, stating as follows:
    MOTION TO DISMISS
    Appellants’ Notice of Appeal is premature and should be dismissed because
    the Summary Judgment being appealed is a non-appealable interlocutory order.
    The order from which Appellants’ appeal does not resolve Defendants’ claims for
    attorneys’ fees under the Declaratory Judgment Act. Because the judgment did not
    resolve all claims, it was not a final judgment and is not appealable. See, Lehman
    v. Harbour Title Co., 
    39 S.W.3d 191
    , 205 (Tex. 2001) (“when there has not been a
    conventional trial on the merits, an order or judgment is not final for purposes of
    appeal unless it actually disposes of every pending claim and party”).
    Defendants’ requests for attorneys’ fees (1 CR 88, 91; 1 CR 93, 86; 1 CR
    294, 296) were not before the Court on summary judgment. See, 2 CR 662
    (Ondrej/Paris Motion); 2 CR 488 (Bradley/Maher Motion); 3 CR 724 (Plaintiffs’
    Motion). The “Mother Hubbard clause” in the judgment – i.e., “All relief not
    MOTION TO DISMISS & FOR EXTENSION OF TIME                                 PAGE 2 OF 7
    expressly granted herein is hereby DENIED” – did not create a final judgment.
    Indeed, the supreme court has noted that such clauses in the summary judgment
    context are “ambiguous” 
    Id. at 204,
    206. The reason, as the court explained, is that
    such clauses:
    “may mean only that the relief requested in the motion -- not all the
    relief requested by anyone in the case – and not granted by the
    order is denied.”
    
    Id. at 204
    (emphasis original). Thus, our supreme court has held that,
    “the inclusion of a Mother Hubbard clause -- by which we mean the
    statement, ‘all relief not granted is denied’, or essentially those
    words -- does not indicate that a judgment rendered without a
    conventional trial is final for purposes of appeal.”
    
    Lehman, 39 S.W.3d at 203-204
    .
    Accordingly, under Lehman, the trial court’s January 8, 2015, order
    regarding the parties’ summary judgments, which did not address all claims by all
    parties before the court, was not a final, appealable judgment. Therefore, this
    Court lacks jurisdiction and has the authority under Tex.R.App.P. 42.3(a) to
    dismiss this appeal.
    MOTION TO DISMISS & FOR EXTENSION OF TIME                                   PAGE 3 OF 7
    SECOND MOTION FOR EXTENSION OF TIME
    Alternatively, and in the unlikely event that Appellees’ Motion to Dismiss is
    denied, Appellees requests an extension of time to file Appellees’ briefs.
    Appellees’ brief(s) should not be due unless and until this Motion to Dismiss is
    denied. Therefore, Appellees request that their briefing deadline be set at least
    fifteen (15) days after any denial of this Motion to Dismiss. Such an extension will
    prevent Appellees from incurring unnecessary legal fees to prepare brief(s) that are
    likely to become moot now and to never be necessary in the future.
    Appellants’ Notice of Appeal is clearly premature and likely to be
    dismissed.          Following     return    to   the   trial     court   for   resolution    of
    Defendants’/Appellees’ attorneys’ fees claims, Plaintiffs/Appellants are unlikely to
    re-appeal     the    summary       judgments     against       them.     One    ground      that
    Defendants/Appellees asserted for summary judgments was that the statutes of
    limitations bar the Whitfields’ claims to reform the deed that they believe was
    inconsistent with the (expired) contract between the parties. The Supreme Court of
    Texas’ recent decision in Cosgrove v. Cade, a copy of which is attached as Exhibit
    A for the Court’s review, forecloses the Plaintiffs’ contention that the discovery
    rule can apply to toll limitations on a claim to reform a deed where the alleged
    mistake is plainly apparent on the face of the deed. 
    Id. at pg.2.
    MOTION TO DISMISS & FOR EXTENSION OF TIME                                            PAGE 4 OF 7
    Mr. and Mrs. Whitfield have admitted that the difference between the
    (expired) contract and the deed was apparent as soon as they read it, but that they
    simply did not read it for 7 years after receiving it in 2001. See, 2 CR 529, 540,
    563, 564.
    The supreme court’s holding in Cosgrove v. Cade forecloses claims such as
    those by Plaintiffs that allege that a facially apparent error can be inherently
    undiscoverable and toll the statute of limitations, as follows:
    “Today we expressly hold what we have suggested for almost half a
    century: Plainly obvious and material omissions in an unambiguous
    deed charge parties with irrebuttable notice for limitations
    purposes. . . . Property Code section 13.002—“[a]n instrument that
    is properly recorded in the proper county is . . . notice to all persons
    of the existence of the instrument”—provides all persons, including
    the grantor, with notice of the deed’s contents as well. . . . Because
    section 13.002 imposes notice of a deed’s existence, it would be
    fanciful to conclude that an injury stemming from a plainly evident
    mutual mistake in the deed’s contents would be inherently
    undiscoverable when any reasonable person could examine the
    deed and detect the obvious mistake within the limitations period.”
    Exhibit A, Cosgrove v. Cade (14-0346) at p.2
    MOTION TO DISMISS & FOR EXTENSION OF TIME                                      PAGE 5 OF 7
    Given that the key and dispositive limitations/discovery rule issue raised by
    Plaintiffs’ appeal has been conclusively decided against them and in favor of the
    trial court’s summary judgments, Appellees trust that Appellants will not bring a
    frivolous appeal challenging those summary judgments again.          Therefore, an
    Appellees’ brief explaining why those summary judgments were proper is likely to
    never become necessary.
    CERTIFICATE OF CONFERENCE
    Appellee’s counsel has conferred with the attorney for Appellants and
    Appellants agree to the alternative request for an extension, but have not agreed to
    the Motion to Dismiss.
    PRAYER
    WHEREFORE, PREMISES CONSIDERED, Appellees pray that this Court
    dismiss the appeal as interlocutory and premature, or, alternatively, grant
    Appellees a second extension of time to file Appellees’ Brief(s) of at least 15 days
    following the Court’s decision on the Motion to Dismiss.
    MOTION TO DISMISS & FOR EXTENSION OF TIME                                  PAGE 6 OF 7
    Respectfully submitted,
    PIPKIN & OLIVER, L.L.P.                           STEED BARKER, PLLC
    1020 Northeast Loop 410, Suite 810                8610 N. New Braunfels, Suite 705
    San Antonio, Texas 78209                          San Antonio, TX 78217
    Telephone: (210) 820-0082                         Telephone: (210) 829-8833
    Telecopier: (210) 820-0077                        Telecopier: (210) 622-2808
    By: /s/ Kortney M. Kloppe-Orton                   By: /s/ Jerry T. Steed
    William H. Oliver                                 Jerry T. Steed
    State Bar No. 15265200                            State Bar No. 19097500
    Kortney M. Kloppe-Orton                   jtsteed@steedbarkerlaw.com
    State Bar No. 00794104                    ATTORNEY FOR APPELLEES ONDREJ
    kkloppe@pipkinoliver.com                          AND PARIS
    ATTORNEYS FOR APPELLEE KAREN
    BRADLEY, INDEPENDENT
    EXECUTRIX OF THE ESTATE OF
    GENEVIEVE MAHER, DECEASED
    CERTIFICATE OF SERVICE
    I HEREBY CERTIFY that a true and correct copy of the foregoing MOTION TO
    DISMISS FOR LACK OF JURISDICTION OR, IN THE ALTERNATIVE, FOR A SECOND
    EXTENSION OF TIME TO FILE APPELLEES’ BRIEF(S) has been sent via electronic filing
    and/or e-mail to the following counsel of record on the 31st day of July, 2015:
    James M. “Jamie” Parker, Jr.                    Ward H. Thomas, Jr.
    Larry D. Warren                                 126 W. Main
    NAMAN HOWELL SMITH & LEE                        Kenedy, Texas 78119
    10001 Reunion Place, Suite 600                  wardtlaw@aol.com
    San Antonio, TX 78216-4140
    jparker@namanhowell.com
    lwarren@namanhowell.com
    John R. Lane, Jr.
    Matthew J. Countryman
    Lane & Countryman
    8526 N. New Braunfels Ave.
    San Antonio, TX 78217
    johnlane@jrl-law.com
    mcountryman@irl-law.com
    /s/ Kortney M. Kloppe-Orton
    Kortney M. Kloppe-Orton
    MOTION TO DISMISS & FOR EXTENSION OF TIME                                            PAGE 7 OF 7
    

Document Info

Docket Number: 04-15-00052-CV

Filed Date: 7/31/2015

Precedential Status: Precedential

Modified Date: 9/28/2016