Johnny E. Webb, III v. Alex Rodriguez ( 2015 )

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
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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