Niels Ulrik Oldenburg, Individually and Next of Friend for J.O. and Erick Oldenburg v. Margot O. Burrell, Individually and as Trustee of the Margot O. Burrell Living Trust and Kelly Kerr F/K/A Kelly Oldenburg Watson

DISMISS and Opinion Filed February 16, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00514-CV
NIELS ULRIK OLDENBURG, INDIVIDUALLY AND AS NEXT OF
FRIEND FOR J.O., AND ERICK OLDENBURG, Appellants
V.
KELLY KERR, Appellee
On Appeal from the 95th District Court
Dallas County, Texas
Trial Court Cause No. DC-19-17313
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Pedersen, III, and Justice Goldstein
Opinion by Chief Justice Burns
We questioned our jurisdiction over this appeal because it appeared the
judgment was not final. Generally, this Court has jurisdiction over final judgments
and certain interlocutory orders as permitted by statute. See Lehmann v. Har–Con
Corp., 39 S.W.3d 191, 195 (Tex. 2001); see also TEX. CIV. PRAC. & REM. CODE
ANN. § 51.014(a). A final judgment is one that disposes of all parties and claims.
See Lehmann, 39 S.W.3d at 195. As directed, the parties filed letter briefs
addressing the jurisdictional issue. For reasons that follow, we dismiss the appeal.
Appellants Niels Ulrik Oldenburg, individually and as next friend for J.O.,
and Erick Oldenburg (collectively appellants) filed a lawsuit against appellee Kelly
Kerr and Margot O. Burrell, individually and as trustee of the Margot O. Burrell
Living Trust (collectively defendants). The lawsuit alleged numerous claims
against each defendant, including a claim for declaratory judgment. Defendants
asserted a counterclaim for attorney’s fees pursuant to the Declaratory Judgments
Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.009. They also asserted a claim
for attorney’s fees for pleading violations pursuant to section 10.002 of the Civil
Practice and Remedies Code and a claim for sanctions pursuant to Texas Rule of
Civil Procedure 13. See TEX. CIV. PRAC. & REM. CODE ANN. § 10.002 (allowing
motion to recover attorney’s fees for pleadings filed in violation section 10.001);
TEX. R. CIV. P.13 (allowing court to impose sanctions against party who files a
pleading in bad faith). Kerr moved for summary judgment only on the claims
asserted against her. On September 14, 2021, the trial court granted her motion
with the notation that it is a “partial summary judgment and does not dispose of all
parties, claims, and counterclaims in this lawsuit.”
Kerr died in October of 2021. When no administrator was appointed for her
estate, appellants filed an unopposed motion to sever.1 In this motion, appellants
acknowledge that claims remain pending by stating: “Given the fact that Kelly has
1
We note that attorney Lisa Leffingwell has been appointed as the temporary administrator for the
Kelly Kerr estate. Ms. Leffingwell has filed a notice of appearance in this appeal.
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no administrator to defend her estate or prosecute her counterclaim, severance of
her estate from this lawsuit is well within the Court’s discretion and appropriate
here.” The trial court granted the motion by order signed on April 22, 2022.
Considering the September 14 summary judgment final following the severance
order, appellants filed a notice of appeal.
In their letter brief, appellants assert the summary judgment disposed of all
their claims against Kerr. They acknowledge that Kerr made a claim for attorney’s
fees under section 10.002 and a claim for sanctions under Rule 13. They assert
that failure to rule on the “motions” does not affect finality. See Jobe v. Lapidus,
874 S.W.2d 764, 766 (Tex. App.—Dallas 1994, writ denied) (holding judgment
did not have to resolve the pending rule 13 sanctions motion to be final because a
motion for sanctions “is not a pleading that frames issues which must be resolved
in a final judgment.”). Jobe does not address a claim for fees pursuant to
section10.002 or section 37.009. Those two claims were pending when the partial
summary judgment was signed and the subsequent severance order does not
change that pending status. See McNally v. Guevara, 52 S.W.3d 195, 196 (Tex.
2001) (per curiam) (summary judgment that does not dispose of a counterclaim for
attorney’s fees under Declaratory Judgments Act is not final); Shah v. Remy, No.
14-21-00612-CV, 2022 WL 777084, at *1 (Tex. App. Mar. 15, 2022, pet. denied)
(mem. op.) (request for a sanctions award under Chapter 10 of the Civil Practice
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and Remedies Code must be resolved for the trial court’s judgment to be final and
appealable).
Because a final judgment has not been rendered, we dismiss the appeal for
want of jurisdiction. See TEX. R. APP. P. 42.3(a).
/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE
220514F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
NIELS ULRIK OLDENBURG, On Appeal from the 95th District
INDIVIDUALLY AND NEXT OF Court, Dallas County, Texas
FRIEND FOR J.O., AND ERICK Trial Court Cause No. DC-19-17313.
OLDENBURG, Appellants Opinion delivered by Chief Justice
Burns. Justices Pedersen, III and
No. 05-22-00514-CV V. Goldstein participating.
KELLY KERR, Appellee
In accordance with this Court’s opinion of this date, the appeal is
DISMISSED.
It is ORDERED that appellee KELLY KERR recover her costs of this
appeal from appellants NIELS ULRIK OLDENBURG, INDIVIDUALLY AND
NEXT OF FRIEND FOR J.O., AND ERICK OLDENBURG.
Judgment entered February 16, 2023
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