in the Estate of Ira E. Tobolowsky ( 2019 )

Order entered July 29, 2019
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00073-CV
IN THE ESTATE OF IRA E. TOBOLOWSKY, DECEASED
On Appeal from the 95th District Court
Dallas County, Texas
Trial Court Cause No. DC-18-17620
ORDER
This is an appeal from the trial court’s December 30, 2018 order concerning the Estate of
Ira E. Tobolowsky’s Rule 202 petition. The order denied the motions for continuance and pleas
to the jurisdiction filed by Dallas County and Dallas County Medical Examiner’s (collectively
“County”) and the City of Dallas and Dallas Police Department (collectively “City”), dismissed
without prejudice the Estate’s petition as to the County, and granted the Estate’s petition as to the
City. All parties appealed, with the Estate filing a “conditional cross-appeal” to “preserve” its
“rights against” the City and County and “in the event” the Court or the Texas Supreme Court
“grant[s]” the City “any relief in its appeal.”
In light of the Estate’s petition as to the County being dismissed, we questioned whether
the County’s appeal of the trial court’s denial of its motion for continuance and plea to the
jurisdiction was moot. At our request, the County filed a letter brief addressing our concern.
The County explained the Estate’s “cross-appeal” was “technically” a direct appeal against the
County, as the “cross-appeal” was filed before the County filed its appeal, and a cross-appeal
against the City. The County further explained it filed its appeal to prevent any waiver.
Subsequently, the Estate filed a letter brief confirming it was appealing the dismissal of its
petition against the County. In the letter brief, the Estate also informed the Court it was
abandoning its appeal as to the City.
Based on the parties’ assertions, we REALIGN the County and Estate, such that the
Estate is an appellant as to the County and an appellee as to the City, and the County is an
appellee/cross-appellant as to the Estate. As it appears the appellate record is complete, we
ORDER the City and Estate to file their respective opening briefs no later than August 28, 2019.
See 5th Tex. App. (Dallas) Loc. R. 5. The Estate’s response brief to the City’s brief and the
County’s combined response and cross-appellant’s brief to the Estate’s brief shall be filed within
thirty days of the filing of the opening briefs, and the City’s reply brief and the Estate’s
combined reply and cross-appellee’s brief to the County’s brief shall be filed thirty days later.
See id. The County’s cross-appellant’s brief shall be filed within twenty days of the filing of the
Estate’s combined reply and cross-appellee’s brief. See id.
/s/ BILL WHITEHILL
JUSTICE