Connie Lee Geldreich v. Richard Geldreich, Jr.

• Court: Court of Appeals of Texas
• Decided: July 7, 2022
• Docket: 05-20-00702-CV
• Status: Published

Opinion

Affirmed and Opinion Filed July 7, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00702-CV

CONNIE LEE GELDREICH, Appellant V. RICHARD GELDREICH, JR., Appellee

On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-15329

MEMORANDUM OPINION Before Justices Schenck, Osborne, and Partida-Kipness Opinion by Justice Partida-Kipness Appellant Connie Lee Geldreich appeals the trial court’s orders granting

appellee Richard Geldreich, Jr.’s motion for summary judgment and denying a plea

in abatement. In two issues, Connie contends the trial court abused its discretion by

(1) failing “to grant a reasonable request for continuance” of the summary judgment

response date and hearing, and (2) denying her plea in abatement sought based on a

pending proceeding in Washington state. We conclude Connie failed to preserve

error concerning her motion for continuance, and the order denying the plea in

abatement is now moot. Accordingly, we affirm the trial court’s final judgment and

dismiss appellant’s complaint regarding the abatement ruling as moot. BACKGROUND

Richard is an author and creator of game and open-source software1. He

married Connie on August 5, 2004, in Plano, Texas. During the marriage, Richard

and Connie formed and jointly owned Tenacious Software LLC, a Texas Limited

Liability Company. Tenacious was formed for the purpose of developing and

marketing proprietary software that was not open-source. Richard uploaded and

licensed two open-source software products during Tenacious’s existence, Crunch

and LZHAM. Connie believed Tenacious would use these products as a marketing

tool or “sample product” to obtain work to develop commercial software products.

Tenacious never completed any proprietary, non-open-source software before it

went out of business and forfeited its corporate charter on February 20, 2015.

At that time, the couple was living in Washington state. They separated there

on February 15, 2016. The Thurston County Superior Court of Washington entered

a Final Divorce Decree and “Findings and Conclusions About a Marriage” on

January 29, 2019. That court found that the marital community ended on February

15, 2016, and Richard and Connie “stopped acquiring community property and

incurring community debt on this date.” Connie was also awarded “60% ownership

1 Richard explained below that open-source software is software that is uploaded to the internet and licensed for free use by the public. The term “open-source” as related to software is defined as “having the source code freely available for possible modification and redistribution.” Open-source, MERRIAM- WEBSTER.COM, https://www.merriam-webster.com/dictionary/open-source (last visited June 23, 2022); Open-source, DICTIONARY.COM, https://www.dictionary.com/browse/open-source (last visited June 23, 2022) (“Computers. pertaining to or denoting software whose source code is available free of charge to the public to use, copy, modify, sublicense, or distribute.”). –2– of Tenacious Software, Crunch, LZHAM, and all associated intellectual property,

patents, accounts, and derivations of said software/licenses.”

After the separation, Richard became a joint owner of a new consulting

company called Binomial LLC, which was formed by Stephanie Hurlburt on May 3,

2016. Binomial, through Richard and Hurlburt, provides consulting services and

support of open-source software. Richard maintains that all of his work at Binomial

occurred after he and Connie separated. In 2019, Richard wrote, uploaded, and

licensed an open-source data compression software product called Basis Universal.

On July 18, 2019, Connie sued Richard, Hurlburt, and Binomial in the King

County Superior Court of the State of Washington (the Washington proceeding).

Connie asserted that Binomial’s Basis Universal software “originated with”

Tenacious and its Crunch software. Connie accused Richard, Hurlburt, and Binomial

of fraudulently conveying and converting Tenacious’s intellectual property. As a

60% owner of Tenacious and its software and intellectual property, Connie claimed

an ownership interest in Binomial and Basic Universal because of the purported

wrongdoing of Richard, Hurlburt, and Binomial. She sought an accounting and

dissolution of Binomial, the creation of a receivership, and a judgment for damages

and distribution of the value of her purported intellectual property interest in

Binomial.

On August 30, 2019, Richard’s counsel in Washington filed a notice of

appearance in the Washington proceeding. On September 19, 2019, Richard filed

–3– the underlying Texas proceeding seeking a declaration that Connie has no rights to

any of the open-source software or to Binomial. Connie answered the Texas lawsuit

and included a plea in abatement with her general denial. In the plea in abatement,

Connie asserted that the Washington court had dominant jurisdiction because that

proceeding was between the same parties and involved the same claims as the Texas

proceeding. She asked the trial court to stay the Texas proceeding “until the

Washington lawsuit has been concluded or until further orders of the Court, . . .” The

trial court denied Connie’s plea in abatement on December 19, 2019.

On May 28, 2020, Richard filed and served his “Traditional Motion for

Summary Judgment.” On May 29, 2020, Richard filed and served a “Notice of

Submission Date” advising Connie that the motion would be heard by submission

on June 25, 2020. Connie did not file a response to the summary judgment motion.

On the submission date of June 25, 2020, Richard filed and served a letter to the

court confirming that no response had been filed to the motion for summary

judgment and tendered a proposed order.

Four days later, on June 29, 2020, Connie filed a motion for continuance of

the hearing on the summary judgment motion. In the continuance motion, Connie

acknowledged that her counsel received the motion for summary judgment on May

29, 2020, through the court’s ECF filing system. Connie further acknowledged that

the Notice of Submission Date was filed through the court’s electronic filing system

but her counsel “did not notice it nor was it brought to his attention until the day of

–4– submission, June 25, 2020.” Connie prayed for a continuance of the hearing in order

to take Richard’s deposition pursuant to Rule 166a(g).

The trial court signed a final judgment granting Richard’s motion for

summary judgment on June 29, 2020. The record does not indicate whether the trial

court signed the final judgment before or after Connie filed her motion for

continuance. Richard responded to the motion for continuance, but Connie did not

set the motion for hearing or submission and did not obtain a ruling on the motion.

Nor did she file a motion for reconsideration of the summary judgment order or

similar motion seeking an order vacating the trial court’s final judgment. Connie

filed a notice of appeal seeking review of the order denying the plea in abatement

and the final judgment.

ANALYSIS

Connie brings two issues on appeal. We will address each in turn.

I. Motion for Continuance

In her first issue, Connie contends the trial court abused its discretion by

failing “to grant a reasonable request for continuance.” In order to preserve error for

appellate review, the record must show (1) the complaint was timely presented to

the trial court, and (2) the trial court either (a) ruled on the request, objection or

motion, or (b) refused to rule on the request, objection, or motion, and the

complaining party objected to the refusal to rule. TEX. R. APP. P. 33.1(a). Connie has

not met these requirements.

–5– First, we must determine if the motion for continuance was timely filed. To

do so, we must determine when Connie received notice of the submission date.

Connie insists her counsel “never received notice of the ‘submission’” and by filing

the motion for continuance “immediately brought her objection and request for an

extension to the attention” of the trial court. The record does not support these

assertions.

It is undisputed that Richard served Connie through counsel with the summary

judgment motion on May 28, 2020, and her counsel received the motion the same

day. The record further shows Richard filed his Notice of Submission Date on May

29, 2020. This notice states that the motion for summary judgment “will be presented

to the Court for consideration by submission in lieu of a live hearing on June 25,

2020.” (emphasis in original). The certificate of service states that it was delivered

to Connie’s counsel of record via the court’s ECF system on May 29, 2020. This is

prima facie evidence Connie was served with the notice of submission in lieu of a

live hearing on May 29, 2020. See TEX. R. CIV. P. 21a(e).

Although Rule 21a(e) permits a party to offer proof that a document was not

received, Connie offered no such proof and does not dispute receiving the notice on

May 29, 2020. Instead, her counsel represents that he “did not notice it” and it was

not “brought to his attention” until the submission date. Counsel’s allegations,

however, do not support Connie’s contentions on appeal that she did not receive

notice of the submission date and, as such, timely filed her motion for continuance.

–6– Electronic service is “complete on transmission of the document to the serving

party’s electronic filing service provider.” TEX. R. CIV. P. 21a(b)(3). “The rule does

not contemplate that electronic service is somehow incomplete when a party

experiences computer or email issues.” Abuzaid v. Anani, LLC, No. 05-16-00667-

CV, 2017 WL 5590194, at *4 (Tex. App.—Dallas Nov. 21, 2017, no pet.) (mem.

op.). “Rather, notice properly sent pursuant to rule 21a raises a presumption that

notice was received.” Id. (citing Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex.

2005)); Brandon v. Rudisel, 586 S.W.3d 94, 102 (Tex. App.—Houston [14th Dist.]

2019, no pet.) (same).

The record establishes that Connie received the notice of submission date on

May 29, 2020, more than twenty-one days before June 25, 2020. Yet, Connie’s

counsel waited four days after the submission date to file the motion for continuance.

That motion was untimely. See Southside Partners v. Collazo Enters., LLC, No. 11-

16-00346-CV, 2018 WL 6729732, at *7 (Tex. App.—Eastland Dec. 21, 2018, no

pet.) (mem. op.) (motion for continuance untimely when filed after the summary

judgment hearing and after the trial court ruled). Connie, therefore, failed to meet

the first requirement to preserve error on this issue.

Further, Connie has not established the remaining preservation requirements.

The record does not show that the motion for continuance was set for hearing, that

the trial court ruled on the motion, or that Connie objected to the trial court’s failure

to rule. Connie, therefore, failed to preserve error on this issue. Vela v. Manning,

–7– 314 S.W.3d 693, 694 (Tex. App.—Dallas 2010, pet. denied) (error not preserved

because the record did not show that the motion for continuance was set for hearing,

that the trial court ruled on the motion, or that the movant objected to the trial court's

failure to rule); Hightower v. Baylor Univ. Med. Ctr., 251 S.W.3d 218, 224–225

(Tex. App.—Dallas 2008, pet. struck.) (appellant failed to obtain ruling on motion

for continuance and therefore failed to preserve error); Mitchell v. Bank of Am., N.A.,

156 S.W.3d 622, 626 (Tex. App.—Dallas 2004, pet. denied) (same). Because Connie

failed to preserve error, we overrule her first issue.

II. Denial of Plea in Abatement

In her second issue, Connie complains the trial court abused its discretion by

denying her plea in abatement. Richard maintains this issue is moot because the

Washington proceeding has been dismissed. We agree with Richard.

Connie included a plea in abatement in her original answer. She asked the trial

court to stay the proceedings “until the Washington lawsuit has been concluded or

until further orders of the Court” because that proceeding was between the same

parties and involved the same claims as the Texas proceeding:

The nature of the claims asserted in the Washington lawsuit are the same as the claims asserted and relief requested in this proceeding. Both lawsuits involve ownership claims in Tenacious Software, LLC and Binomial, LLC, a Washington limited liability corporation.

The Superior Court in Washington acquired dominant jurisdiction to the exclusion of other courts. Furthermore, Richard Geldreich could obtain in the Washington lawsuit all the relief he seeks in the Texas lawsuit.

–8– The trial court heard and denied the plea on December 19, 2019.

During the course of this appeal, Connie moved to voluntarily dismiss her

claims in the Washington proceeding, and the Washington court dismissed the

proceeding.2 Connie’s counsel conceded at oral argument that the Washington

proceeding had been dismissed. Counsel argued, however, that Connie’s second

issue is not moot because the dismissal was without prejudice and, therefore, the

Washington court could allow Connie to reinstate the proceeding if this Court

reverses the order denying the plea in abatement. We disagree.

Mootness occurs when events make it impossible for the court to grant the

relief requested or otherwise affect the parties’ rights or interests. State ex rel. Best

v. Harper, 562 S.W.3d 1, 6 (Tex. 2018). Further, some issues in a case may become

moot, while others remain live. Id. Here, the basis for the relief requested by Connie

in the plea in abatement (i.e., a pending proceeding in a different court with dominant

jurisdiction) no longer exists because the Washington proceeding is no longer

pending. In other words, the issue of whether the Washington court has dominant

jurisdiction over the Texas court is no longer in controversy. Under this record, we

conclude Connie’s second issue is moot.

2 We take judicial notice of the Washington court’s September 18, 2020 “Order Granting Motion for CR 41(a) Dismissal.” Rule 41(a) permits voluntary dismissal by the plaintiff. WASH. SUPER. CT. CIV. R. 41(a) (“Voluntary Dismissal”).

–9– CONCLUSION

We conclude appellant failed to preserve error as to her first issue and her

second issue became moot during the course of this appeal. Accordingly, we

overrule both issues and affirm the trial court’s judgment.

/Robbie Partida-Kipness/ ROBBIE PARTIDA-KIPNESS JUSTICE

200702F.P05

–10– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

CONNIE LEE GELDREICH, On Appeal from the 162nd Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. DC-19-15329. No. 05-20-00702-CV V. Opinion delivered by Justice Partida- Kipness. Justices Schenck and RICHARD GELDREICH, JR., Osborne participating. Appellee

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee RICHARD GELDREICH, JR. recover his costs of this appeal from appellant CONNIE LEE GELDREICH.

Judgment entered this 7th day of July 2022.

–11–