                                                                                                      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
