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