Niels Ulrik Oldenburg, Individually and Next of Friend for J.O. and Erick Oldenburg v. Margot O. Burrell, Individually and as Trustee of the Margot O. Burrell Living Trust and Kelly Kerr F/K/A Kelly Oldenburg Watson

• Court: Court of Appeals of Texas
• Decided: February 16, 2023
• Docket: 05-22-00514-CV
• Status: Published

Opinion

DISMISS and Opinion Filed February 16, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00514-CV

NIELS ULRIK OLDENBURG, INDIVIDUALLY AND AS NEXT OF FRIEND FOR J.O., AND ERICK OLDENBURG, Appellants V. KELLY KERR, Appellee

On Appeal from the 95th District Court Dallas County, Texas Trial Court Cause No. DC-19-17313

MEMORANDUM OPINION Before Chief Justice Burns, Justice Pedersen, III, and Justice Goldstein Opinion by Chief Justice Burns We questioned our jurisdiction over this appeal because it appeared the

judgment was not final. Generally, this Court has jurisdiction over final judgments

and certain interlocutory orders as permitted by statute. See Lehmann v. Har–Con

Corp., 39 S.W.3d 191, 195 (Tex. 2001); see also TEX. CIV. PRAC. & REM. CODE

ANN. § 51.014(a). A final judgment is one that disposes of all parties and claims.

See Lehmann, 39 S.W.3d at 195. As directed, the parties filed letter briefs

addressing the jurisdictional issue. For reasons that follow, we dismiss the appeal. Appellants Niels Ulrik Oldenburg, individually and as next friend for J.O.,

and Erick Oldenburg (collectively appellants) filed a lawsuit against appellee Kelly

Kerr and Margot O. Burrell, individually and as trustee of the Margot O. Burrell

Living Trust (collectively defendants). The lawsuit alleged numerous claims

against each defendant, including a claim for declaratory judgment. Defendants

asserted a counterclaim for attorney’s fees pursuant to the Declaratory Judgments

Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.009. They also asserted a claim

for attorney’s fees for pleading violations pursuant to section 10.002 of the Civil

Practice and Remedies Code and a claim for sanctions pursuant to Texas Rule of

Civil Procedure 13. See TEX. CIV. PRAC. & REM. CODE ANN. § 10.002 (allowing

motion to recover attorney’s fees for pleadings filed in violation section 10.001);

TEX. R. CIV. P.13 (allowing court to impose sanctions against party who files a

pleading in bad faith). Kerr moved for summary judgment only on the claims

asserted against her. On September 14, 2021, the trial court granted her motion

with the notation that it is a “partial summary judgment and does not dispose of all

parties, claims, and counterclaims in this lawsuit.”

Kerr died in October of 2021. When no administrator was appointed for her

estate, appellants filed an unopposed motion to sever.1 In this motion, appellants

acknowledge that claims remain pending by stating: “Given the fact that Kelly has

1 We note that attorney Lisa Leffingwell has been appointed as the temporary administrator for the Kelly Kerr estate. Ms. Leffingwell has filed a notice of appearance in this appeal.

–2– no administrator to defend her estate or prosecute her counterclaim, severance of

her estate from this lawsuit is well within the Court’s discretion and appropriate

here.” The trial court granted the motion by order signed on April 22, 2022.

Considering the September 14 summary judgment final following the severance

order, appellants filed a notice of appeal.

In their letter brief, appellants assert the summary judgment disposed of all

their claims against Kerr. They acknowledge that Kerr made a claim for attorney’s

fees under section 10.002 and a claim for sanctions under Rule 13. They assert

that failure to rule on the “motions” does not affect finality. See Jobe v. Lapidus,

874 S.W.2d 764, 766 (Tex. App.—Dallas 1994, writ denied) (holding judgment

did not have to resolve the pending rule 13 sanctions motion to be final because a

motion for sanctions “is not a pleading that frames issues which must be resolved

in a final judgment.”). Jobe does not address a claim for fees pursuant to

section10.002 or section 37.009. Those two claims were pending when the partial

summary judgment was signed and the subsequent severance order does not

change that pending status. See McNally v. Guevara, 52 S.W.3d 195, 196 (Tex.

2001) (per curiam) (summary judgment that does not dispose of a counterclaim for

attorney’s fees under Declaratory Judgments Act is not final); Shah v. Remy, No.

14-21-00612-CV, 2022 WL 777084, at *1 (Tex. App. Mar. 15, 2022, pet. denied)

(mem. op.) (request for a sanctions award under Chapter 10 of the Civil Practice

–3– and Remedies Code must be resolved for the trial court’s judgment to be final and

appealable).

Because a final judgment has not been rendered, we dismiss the appeal for

want of jurisdiction. See TEX. R. APP. P. 42.3(a).

/Robert D. Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE

220514F.P05

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

NIELS ULRIK OLDENBURG, On Appeal from the 95th District INDIVIDUALLY AND NEXT OF Court, Dallas County, Texas FRIEND FOR J.O., AND ERICK Trial Court Cause No. DC-19-17313. OLDENBURG, Appellants Opinion delivered by Chief Justice Burns. Justices Pedersen, III and No. 05-22-00514-CV V. Goldstein participating.

KELLY KERR, Appellee

In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

It is ORDERED that appellee KELLY KERR recover her costs of this appeal from appellants NIELS ULRIK OLDENBURG, INDIVIDUALLY AND NEXT OF FRIEND FOR J.O., AND ERICK OLDENBURG.

Judgment entered February 16, 2023

–5–