                                                                                                      ACCEPTED
                                                                                                  05-15-01068-CV
                                                                                       FIFTH COURT OF APPEALS
                                                                                                  DALLAS, TEXAS
                                                                                             11/5/2015 6:28:29 PM
                                                                                                       LISA MATZ
                                                                                                           CLERK

                            WOLF & HENDERSON, P.C.
                                 A Professional Corporation
                                       Attorneys at Law                        FILED IN
                                4309 Irving Avenue, Suite 200          5th COURT OF APPEALS
                                    Dallas, Texas 75219                    DALLAS, TEXAS
                                                                       11/5/2015 6:28:29 PM
(214) 750-1395                                                      TelecopierLISA  MATZ
                                                                                (214)  368-1395
                                     November 5, 2015                            Clerk


Lisa Matz, Clerk of the Court
Fifth Court of Appeals
600 Commerce St., Suite 200
Dallas, Texas 75202

       Re:    Court of Appeals No. 05-15-01068 My Three Sons, Ltd., et al. v.
              Midway/Parker Medical Center, L.P., et al.

              Trial Court Cause No. 380-00398-2013, My Three Sons, Ltd., et al v.
              Midway/Parker Medical Center, L.P., et al., in the 380th District Court of
              Collin County, Texas

Dear Clerk:

       This letter is submitted by Appellants in response to the Court’s October 26, 2015
request to provide a letter brief regarding the trial court’s apparent entry of two orders of
dismissal (one dismissing the case in its entirety and the other dismissing only Plaintiffs’
claims).

       1.    Plaintiff-Appellants filed a lawsuit against the seven Defendant-Appellees
for damages and injury relating to leaking sewage pipes and broken fire sprinkler lines in
a medical office building. CR 17. In response, one of the defendants, Manhattan
Construction Company (“MCC”), filed a motion to compel arbitration of plaintiffs’
claims against MCC. CR 35. No other defendant joined in the motion. The trial court
granted MCC’s motion, abated the entire case, and ordered that Appellants arbitrate their
claims against MCC. CR 244. Thus, Appellants’ claims against the six other defendants
were not ordered to be arbitrated, but were subjected to the stay.

       2.     On February 9, 2015, another defendant, Southstar Fire Protection Systems
(“Southstar”), filed a motion to dismiss for Appellants’ failure to initiate arbitration
against MCC. CR 252. At the time of the filing of Southstar’s motion, Appellants had
not yet filed a demand for arbitration with the American Arbitration Association (the
“AAA”). All of the other defendants joined in Southstar’s motion to dismiss, including
Lisa Matz, Clerk of the Court
November 5, 2015
Page 2

MCC. CR 258, 261, 264, 267. A hearing on Southstar’s motion was set for May 18,
2015. CR 273.

        3.    Prior to the May 18 hearing, Appellants filed, among other things, a
demand for arbitration with the AAA with respect to Appellants’ claims against MCC.1
CR 319. Despite the filing of the arbitration demand, the trial court proceeded with the
hearing and granted Southstar’s motion. CR 12 (May 18, 2015 General Docket Entry).
On June 2, 2015 at 11:27a.m., Southstar’s counsel submitted a proposed order (which
provided for only dismissal of plaintiffs’ claims). CR 362. Later that same day,
Appellants also submitted a proposed order (which provided for the dismissal of the
entire case). CR 360.

       4.     On June 4, 2015, Southstar’s counsel sent to all parties’ counsel (including
Appellants’ counsel) an email attaching a copy of the dismissal order signed by the trial
court. That signed order appears in the record at CR 367 and was the form submitted by
Southstar’s counsel. At that time, Appellants had no idea that the trial court had also
previously signed another order (the form of Appellants’ counsel’s order). That signed
order appears in the record at CR 366. Appellants’ counsel did not learn of the entry of
the order appearing at CR 366 until he received this Court’s October 26, 2015 letter.2 In
fact, Appellants’ counsel has not ever received (to his knowledge) a signed copy of either
order from the trial court or its clerk (other than what is in the CR when it was filed).
And apparently, the other parties did not know about the other signed order either
because they proceeded to file various notices of nonsuits. They presumably did so
because, according to the signed order attached to Southstar’s June 4 email that they
received, only the “plaintiffs’ claims” were dismissed. If defendants’ counsel would have
known that the entire case had been dismissed, there would have been no need to file the
notices of nonsuit.


 1
      Despite the dismissal motion and order and MCC’s support thereof, the arbitration proceeding
between Appellants and MCC remains pending and active and is currently set for a preliminary hearing
on December 1, 2015. See also CR 473, 486.
 2
   Appellants’ counsel is not registered to have access to images of the filings that are filed with the
Collin County District Clerk and only has access to the online docket via the clerk’s website. (The Collin
County District Clerk’s “appeal clerk” did provide Appellants’ counsel with a version of the clerk’s
docket sheet to assist Appellants’ preparation of a designation of the clerk’s record, but the hyper-links to
the PDF images on that hard copy docket sheet were not enabled). After receiving the Southstar’s
counsel’s email with the signed dismissal order, Appellants’ counsel presumed the on-line docket entry
was for the dismissal order that was attached to the email. And because the online docket available to the
public is now split into multiple windows, Appellants’ counsel did not notice that there were two separate
docket entries for the dismissal order appearing on two different screens, which simply appear with the
general title “Order of Dismissal.”
Lisa Matz, Clerk of the Court
November 5, 2015
Page 3

       5.      Appellants then filed a motion to reinstate and motion for new trial. CR
369, 285. All defendants opposed the motion, including MCC. CR 418, 424, 429, 437,
440. The trial court conducted an evidentiary hearing on August 10, 2015 and took the
matter under advisement. CR 14 (August 10, 2015 General Docket Entry). The parties
submitted written closing arguments. CR 444, 449, 456, 460, 465, 470. As of the filing
of this letter brief, the trial court has not yet ruled on Appellants’ motion to reinstate or
motion for new trial. In addition and despite Appellants’ timely request and past due
notice, the trial court has failed to file findings of fact and conclusions of law for the
August 10, 2015 hearing. CR 483, 504. In an abundance of caution and fearful that the
two motions were overruled as a matter of law, Appellants filed a notice of appeal. CR
479

       6.     As stated above, Appellants’ counsel was not aware that the trial court had
entered two orders until pointed out by this Court in its October 26 letter. Appellants do
not know why the trial court signed two orders. According to the docket and the clerk’s
record, the order dismissing only Plaintiffs’ claims (CR 367) appears to be the most
recent version signed and filed, and presumably, amends and/or supersedes the earlier
version signed (CR 366), which purportedly dismissed the entire case.

       7.    At all times, the parties acted as if only one order has been signed (the one
dismissing only Plaintiffs’ claims). And more recently, Southstar’s counsel just filed
yesterday with the trial court a request for entry of an additional “Order Granting
Nonsuits” because “the Court of Appeals has pointed out that orders granting the
following nonsuits were never signed.”3

       8.      In light of the authority cited in the Court’s October 26, 2015 letter, it
appears that the June 4 order remains interlocutory. If that is the case, Appellants request
that this Court abate this appeal until the trial court enters the order submitted by
Southstar’s counsel on November 4, 2015. In addition, and for purposes of judicial
economy, Appellants also request (and/or in the alternative) that this Court abate this
appeal until the trial court enters an order on Appellants’ motion to reinstate and motion
for new trial and enters its findings of fact and conclusions of law thereon.

                                                 Sincerely,

                                                 /s/ Craig P. Henderson
                                                 Craig P. Henderson

/cph

 3
    This letter was just filed yesterday and hence, is currently outside the clerk’s record. A supplemental
clerk’s record request has been made.
