Case Information

*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/30/2015 1:15:00 PM JEFFREY D. KYLE Clerk NO. 03-15-00763-CV THIRD COURT OF APPEALS 12/30/2015 1:15:00 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00763-CV *1 ACCEPTED ^[8409054] CLERK TWIN CREEKS GOLF GROUP, L.P., § IN THE THIRD DISTRICT

Appellant §

§

V. § COURT OF APPEALS

§

SUNSET RIDGE OWNERS §

ASSOCIATION, INC., §

Appellee. § AUSTIN, TEXAS

APPELLEE’S RESPONSE TO APPELLANT’S MOTION TO DISMISS FOR LACK OF JURISDICTION TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Sunset Ridge Owners Association, Inc. (referred to herein

as “Appellee”) and files this Response to Appellant’s Motion to Dismiss for Lack

of Jurisdiction, and in support thereof, would show the Court as follows:

ARGUMENT AND AUTHORITIES The basis for Appellant’s Motion to Dismiss for Lack of Jurisdiction (the “Motion”) is Appellant’s contention that the Order on Plaintiff’s Traditional

Motion for Partial Summary Judgment (CR253-254), in the underlying case, is not

final and appealable because Appellee inadvertently included reference to Twin

Creeks Property, Ltd. and Twin Creeks Operating Company, L.P. in Plaintiff’s

Second Amended Original Petition (the “Second Amended Petition”) (CR 256-

259) when it was filed. However, neither Twin Creeks Property, Ltd. nor Twin

Creeks Operating Company, L.P. filed an answer or made an appearance in the

underlying case (either before or after Appellee filed the Second Amended

Petition) and Appellee previously dismissed those parties (CR 251-252).

Additionally, Appellee did not request citations for service of process on Twin

Creeks Property, Ltd. and Twin Creeks Operating Company, L.P. after it filed its

Second Amended Petition and never intended to do so. ^[1] Accordingly, any

reference to those parties in the Second Amended Petition was purely a clerical

error. ^[2] The general rule is that a judgment is final and appealable only when it

disposes of all parties. However, Texas Courts have also held that,

…there are a substantial number of cases holding that such [general

rule] has no application where the judgment complained of disposed

of all named parties except those who have not been served and filed

no answer. In these cases the judgment was ‘final’ for purposes of

appeal and case stood as if there had been a discontinuance as to the

parties not served.

Gumpp v. Philadelphia Life Ins. Co., 562 S.W.2d 885, 889 (Tex. Civ. App. — San

Antonio 1978, no writ); Liberty Mutual Ins. Co. v. City of Fort Worth, 517 S.W.2d

646, 647 (Tex. Civ. App. — Fort Worth 1975, no writ); American Trendex Corp. v.

Ultradyne Corp. , 490 S.W.2d 205, 206 (Tex. Civ. App. — Austin, 1973, writ ref’d

*3 n.r.e.); Hoover v. Baker , 507 S.W.2d 299, 302 (Texas Civ. App. — 1974, writ ref.

n.r.e.). In American Trendex Corp. v. Ultradyne Corp., the appellee raised the

same issue that Appellant raises in its Motion. American Trendex Corp., 490

S.W.2d at 206. In that case, the appellee claimed that appellant’s judgment was

interlocutory because the “judgment did not mention, or dispose of, the issues

between appellee and one defendant…” See id. However, the Court of Appeals

overruled appellee’s motion because the defendant was not served with process

and did not file an answer in the case. See id. The Court stated that “the case

stands as if there had been a discontinuance as to [that defendant], and the

judgment is to be regarded as final for the purpose of appeal.” See id. The same holds true in our case. Neither Twin Creeks Property, Ltd. nor

Twin Creeks Operating Company, L.P. was served with the Second Amended

Petition and neither filed an answer or made an appearance. Therefore, the case

stands as if there had been a discontinuance as to Twin Creeks Property, Ltd. and

Twin Creeks Operating Company, L.P. and the Order should be regarded as final

for the purpose of appeal. Accordingly, this Court should deny Appellant’s

Motion.

PRAYER WHEREFORE, PREMISES CONSIDERED, Sunset Ridge Owners

Association, Inc. prays the Court deny Twin Creek Golf Group, L.P.’s Motion to

Dismiss For Lack of Jurisdiction and grant it such other and further relief to which

it may be justly entitled.

Respectfully submitted, /s/Noel L. Stout ______________________________ Noel L. Stout

nstout@abdlawfirm.com State Bar No. 24033245 ALMANZA, BLACKBURN & DICKIE, LLP 2301 S. Capital of Texas Hwy., Bldg. H Austin, Texas 78746 (512) 474-9486 (512) 478-7151 Fax ATTORNEYS FOR APPELLEE *5 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing

document has been sent via email and certified mail, return receipt requested as

listed below on this the 30 th day of December, 2015.

Allen Halbrook

Sneed, Vine & Perry, P.C.

900 Congress Avenue

Suite 300

Austin, TX 78701

(512) 476-1825 – Fax

ahalbrook@sneedvine.com

/s/Noel L. Stout _________________________________ Noel L. Stout

[1] The facts in this sentence are within the personal knowledge of the attorney signing this motion. T EX . R. A PP . P. 10.2.

[2] The facts in this sentence are within the personal knowledge of the attorney signing this motion. T EX . R. A PP . P. 10.2.

[2]