Johnny E. Webb, III v. Alex Rodriguez

ACCEPTED 06-14-00102-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 3/19/2015 4:43:22 PM DEBBIE AUTREY CLERK NO. 06-14-00102-CV FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS IN THE SIXTH COURT OF APPEALS 3/19/2015 4:43:22 PM DEBBIE AUTREY Clerk Johnny E. Webb, III Appellant v. Alex Rodriguez, et al., Appellees. On appeal from 111 95 Judicial District Court, Dallas County, Texas Hon. Ken Molberg, Presiding Judge APPELLEES' MOTION TO DISMISS FOR LACK OF JURISDICTION Pursuant to Texas Rule of Appellate Procedure 42.3 Appellees move to d ismi ss ("M otion" ) Ap pellant Johnny E. Webb, Ill's ("Appe llant") appeal for lack of j uri sd iction. In support of this Motion, Appellees respectfully show the following: 256 1352. 1 FACTUAL BACKGROUND Appellant's notice of appeal represented that he appealed the trial court's November 12, 2014 Order denyi.ng Appellant's Motion for Reconsideration and to Modify, Correct or Reform Judgment Based on New Evidence and Request for Findings of Fact and Conclusions of Law (the "November 12 Order"). See Clerk's Record ("C.R.") 481; see also C.R. 480. On January 23, 2015 the Court notified Appellant's counsel of a "potential defect in our jurisdiction over this appeal." The letter noted The notice of appeal indicates that appellant is attempting to appeal from the trial court's November 12, 2014, order. That order purports to deny appellant's October 8, 2014, Motion for Reconsideration and to Modify, Correct or Reform Judgment Based on New Evidence and Request For Findings of Fact & Conclusions of Law." The Court went on to state it was "not convinced that the November 12 order is appealable." 1 Three days later, the Supplemental Clerk's Record was filed containing a copy of the September 23 Order. Appellant then filed a response to the Court's January 23 letter explaining the Court had jurisdiction over the appeal because: ( 1) his Motion for Reconsideration extended his deadline to file his notice of appeal; and (2) he filed his notice of appeal within the extended deadline. Appellant's Response at 1-2. Importantly, the response did not (1) state that The Court a lso noted that if Appellanl intended lo appeal the trial court's order granting the Appellees' motion to tra nsfer venue or, in the alternative, to dism iss (the " September 23 Order") , no such order appeared in the clerk' s record. 2 Appellant was appealing the September 23 Order rather than the November 12 Order, or (2) address whether the November 12 Order was an appealable order. Appellant's brief, filed February 26, 2015, does not address the November 12 Order. Instead, the brief expressly states Appellant is appealing the September 23 Order. See Appellant's Brief at pp. 8, 9. ARGUMENT AND AUTHORITIES The Comt lacks jurisdiction over Appellant's appeal. The trial court's November 12 Order is not an appealable order. Fu1thermore, because Appellant's Notice of Appeal did not indicate he appealed the September 23 Order, the Court lacks jurisdiction to consider all of the arguments in Appellant's brief. This appeal should therefore be dismissed under Rule 42.3. A. The November 12 Order is not appea/able. The Court correctly questioned its jurisdiction over Appellant's appeal of the trial court's November 12 Order. An order denying a motion for reconsideration is not independently appealable. Croft v. Jeffcoat, No. 04-11-00458-CV, Not Reported in S.W.3d, 20 11 WL 4589839, at * 1 (Tex. App.-San Antonio Oct. 5, 201 1, no pet.) (dismissing appeal for lack of jurisdiction where "Appellant's notice of appeal states his intent to appeal the trial comt's order denying his motion to reconsider a motion to recover trust property"); State Office of Risk Mgmt. v. Berdan, 335 S.W.3d 421, 428 (Tex. App.-Corpus Christi 20 11 , pet. denied) 3 (court of appeals lacked jurisdiction to consider appeal of order denying motion to reconsider and motion for new trial). Thus, to the extent Appellant attempts to appeal the November 12 Order, the Court lacks jurisdiction to consider that appeal. B. Appellant failed to perfect an appeal of the September 23 Order. As stated above, Appellant's notice of appeal is limited to his attempted appeal of the Court's November 12 Order. Appellant's brief, however, argues the trial court erred in issuing the September 23 Order. Because Appellant's notice of appeal failed to identify the September 23 Order, and because Appellant failed, in response to the Court's letter, to explain how the November 12 Order is an appealable order, he failed to invoke the Court's jurisdiction. This scenario has been addressed by numerous courts of appeals. In each of those cases, the courts found they lacked jurisdiction to consider appeals from orders that were not identified in the notice of appeal. For example, in Daftary v. Prestonwood Market Square, Ltd., the appellants' notice of appeal stated they intended to appeal the trial court's partial judgment signed on January 25, 2011. 399 S.W.3d 708, 713 (Tex. App.- Dallas 20 13 , pet. denied). Appellants' brief argued the trial court also erred by issuing an order on March 1, 2010 severing part of the underlying case. Id. The Fifth Court of Appeals held the appellants "failed 4 to invoke our jurisdiction over issues related to the trial court's severance order" because their notice of appeal fai led to state they were appealing that order. Jd. 2 Similarly, in Perez v. Perez, the appellant's notice of appeal stated he appealed the final di vorce decree entered on August 30, 2006. Appellant's brief also argued the trial court erred in denying his post-trial petition to modify the parent-child relationship. No. 09-06-521 -CV, Not Reported in S.W.3 d, 2007 WL 5187895, at *6 (Tex. App.-Beaumont May 22, 2008, pet. denied). The Ninth Court of Appeals dismissed the portion of appellant' s appeal of the order denying his motion to modify, holding it lacked jurisdiction to consider that issue because appellant's notice of appeal stated appellant only appealed the final divorce decree. Id. at *7; see also Lair v. Lair, No. 02-12-00249-CV, Not Reported in S.W.3d, 20 14 WL 2922245, at *3 (Tex. App.-Fort Worth June 26, 2014, no pet.) (court of appeals lacked jurisdiction to consider appellant's complaint about trial court's order dismissing post-judgment enforcement motion where appellant's notice of appeal did not reference order). In Juanopulos v. Parrott, the appellant sought a writ of mandamus on a motion to transfer venue. No. 14-98-01024-CV, Not Repmted in S.W.2d, 1998 2 Although Appellees are not aware of any confl icting precedent from this Court, they note that the Supreme Court of Texas transferred this appeal from the Fifth Court of Appeals to the Sixth Court of Appea ls pursuant to TEX. Gov'r CODE § 73.001. Pursuant to Tex. R. App. P. 41.3 this Court must dec ide the case in accordance w ith the precedent of the Fifth Court of Appeals under principles of stare decisis if the Court's decision otherwise would have been inconsistent w ith the precedent of the Fifth Court of Appeals. 5 WL 733469, at *1 (Tex. App.-Houston [14th Dist.] Oct. 22, 1998, no pet.). During the course of the appeal, the appellee filed a motion to dismiss the appeal for lack of jurisdiction based on mootness. Id. The appellant did not dispute that the underlying controversy was moot. The court of appeals held it therefore lacked jurisdiction over the appeal. The appellant argued the court of appeals retained jurisdiction to consider a sanctions order. The court of appeals disagreed, holding it lacked jurisdiction because the appellant's notice of appeal did not include the sanctions order. Id. Finally, in Carmona v. Stahely, the appellant's notice of appeal sought to appeal a 2007 order granting the appellee's application for post-judgment turnover of non-exempt assets and appointing a receiver. No. 14-07-00448-CV, Not Reported in S.W.3d, 2008 WL 450369, at *I (Tex. App.-Houston [14th Dist.] Feb. 21, 2008, no pet.). The post-judgment turnover related to an underlying default judgment signed in 2002. The sole issue raised in Appellant's amended brief was whether he received due process before the 2002 default judgment was entered. The court of appeals noted that Appellant "failed to raise an issue challenging the . . . 2007, turnover order named in his notice of appeal." Id. The court of appeals granted the appellee's motion to dismiss, finding the appellant "presented no issue challenging the 2007 turnover order." Id. 6 Because Appellant's notice of appeal did not identify the September 23 Order, and because Appellant did not otherwise timely fi le a notice of appeal of that order, the Court lacks jurisdiction to consider Appellant's appeal of the same. Further, because Appellant's brief on ly addresses the September 23 Order, the Court lacks jurisdiction over the entirety of Appellant's appeal. See, e.g. , Carmona v. Stahely, 2008 WL 450369, at * 1. Appellant's appeal should therefore be dismissed. RELIEF REQUESTED For these reasons, Appellees request the Court dismiss Appellant's appeal fo r lack of jurisdiction. Respectfully submitted, GRAY REED & McGRAW By: /s/ Andrew K. York ANDREW K. YORK State Bar No. 24051554 JIM MOSELEY State Bar No. 14569100 160 I Elm Street, Suite 4600 Dal las, Texas 75201 (214) 954-4135 (214) 953- 1332 (Fax) ATTORNEYS FOR APPELLEES LUCIEN TUJAGUE, JR., AND DOMINION GAS HOLDINGS, LP 7 HALLETT & PERRIN, PC By: Isl Bryan P. Stevens (with permission) BRYAN P. STEVENS State Bar No. 24051387 BARREIT C. LES HER State Bar No. 2407013 7 1445 Ross Avenue, Suite 2400 Dal las, Texas 7 5202 (2 14) 983-0053 (214) 922-4142 (Fax) ATTORNEYS FOR APPELLEES SHUK HOLDINGS, LLC AND IDT ENERGY, INC. GRUBER HURST JOHANSEN HAIL SHANK LLP By: ls/Mark L. Johansen (with permission) MARK L. JOHANSEN State Bar No. 10670240 RAFAEL C. RODRIG UEZ State Bar No. 24081123 1445 Ross A ven ue, Suite 2500 Dallas, Texas 75202 (214) 855-6800 (214) 855-6808 (Fax) ATTORNEYS FOR APPELLEE ALEX RODRIGUEZ 8 CERTIFICATE OF CONFERENCE I hereby ce1tify that on March 19, 2015 , I conferred by email with Appellant's counsel, Darrell O'Neal, concerning the relief requested in this Motion. Mr. O'Neal responded that he opposed the Motion. Isl Andrew K. York Andrew K. York 9 CERTIFICATE OF SERVICE Pursuant to Tex. R. App. P. 9.5(b)( l ), I hereby certify that on March 19, 2015, a true and correct copy of this Motion was forwarded to the persons listed below electronically through the electronic filing manager if the email address of the person is on file with the e lectronic fi ling manager, or by certified mail, return receipt requested if the email address is not on file . Melvin Houston Melvin Houston & Associates 1776 Yorktown St., Suite 350 Houston, Texas 77056 mhouston@gotellmel.com Darrell J. O'Neal 2129 Winchester Road Memphis, Tennessee 3 81 16 domemphislaw@aol .com Bryan Stevens Hallett & Perrin, PC 1445 Ross Avenue, Suite 2400 Dallas, Texas 75202 BStevens@hallettperrin.com Mark L. Johansen Rafael C. Rodriguez Gruber Hurst Johansen Hail Shank LLP 1445 Ross A venue, Suite 2500 Dall as, Texas 75202 mjohansen@ghjhlaw.com rrodriguez@ghjhlaw.com Isl Andrew K. York Andrew K. York 10