NO CV IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS IN RE ESTATE OF MARIE A. MERKEL, DECEASED

NO. 05-08-01615-CV IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS IN RE ESTATE OF MARIE A. MERKEL, DECEASED INDEPENDENT EXECUTOR, MATTHEW R. POLLARD Appellant v. RUPERT M. POLLARD Appellee From the 256 th Family District Court Dallas County, Texas Honorable David Lopez, Presiding Cause No. 92-2980-Z APPELLANT S SUPPLEMENTAL BRIEF Respectfully submitted by, CALLOWAY, NORRIS, BURDETTE & WEBER R. W. CALLOWAY State Bar No. 03665000 MARY C. BURDETTE State Bar No. 04268800 NICOLE P. WOLFF State Bar No. 24058549 3811 Turtle Creek Blvd., Suite 400 Dallas, Texas 75219 (214) 521-1520 (214) 521-2201 - FAX ATTORNEYS FOR APPELLANT ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL Appellant: Matthew R. Pollard, Independent Executor of the Estate of Marie A. Merkel, Deceased Represented in the Trial R. W. CALLOWAY and Appellate Court by: State Bar No. 03665000 MARY C. BURDETTE State Bar No. 04268800 SCOTT D. WEBER State Bar No. 21044875 NICOLE P. WOLFF State Bar No. 24058549 3811 Turtle Creek Blvd., Suite 400 Dallas, Texas 75219 (214) 521-1520 (214) 521-2201 - FAX Appellee: Rupert M. Pollard Represented in the Trial RUPERT M. POLLARD, Pro Se Court by: State Bar No. 16099500 Represented in the Appellate PORTIA J. BOTT Court by: State Bar No. 02687965 5511 Parkcrest Drive, Suite 107 Austin, Texas 78731 (512) 391-2345 i

TABLE OF CONTENTS INDEX OF AUTHORITIES... iii, iv RECORD REFERENCES...v APPELLANT S SUPPLEMENTAL BRIEF...1 STATEMENT OF THE CASE...2 ISSUES PRESENTED...3 STATEMENT REGARDING ORAL ARGUMENT...4 I. SUMMARY OF THE ARGUMENT...5 II. STATEMENT OF FACTS...6 III. ARGUMENT AND AUTHORITIES...7 A. THE COURT OF APPEALS SHOULD REVERSE AND VACATE THE TRIAL COURT S ORDER BECAUSE IT WAS ENTERED LONG AFTER THE TRIAL COURT S PLENARY POWER EXPIRED AND IS THEREFORE VOID...7 B. THE COURT OF APPEALS SHOULD REVERSE AND VACATE THE TRIAL COURT S ORDER BASED ON LACK OF SUBJECT MATTER JURISDICTION BECAUSE THE QUESTION PRESENTED WAS MOOT...12 C. THE COURT OF APPEALS SHOULD REVERSE AND VACATE THE TRIAL COURT S ORDER BECAUSE IT WAS BASED ON A FEDERAL COURT DECISION THAT HAS BEEN REVERSED...14 1. The Federal Lawsuit...14 2. The Trial Court s Order...15 PRAYER FOR RELIEF...16 ii

INDEX OF AUTHORITIES CASES Danforth Memorial Hosp. v. Harris, 573 S.W.2d 762 (Tex. 1978)...8 Deen v. Kirk, 508 S.W.2d 70 (Tex. 1974)...8, 11 Estate of Merkel v. Pollard, 2009 WL 3816961 (5 th Cir., not reported)...15 Estate of Merkel v. United States, et al., 2008 WL 3152986 (N.D. Tex. 2008, unreported)...14 Estate of Merkel v. United States, et al., 2008 WL 3152974 (N.D. Tex. 2008, unreported)...14 Estate of Merkel v. United States, et al., 2009 WL 256508 (N.D. Tex. 2009, unreported)...14 Fulton v. Finch, 346 S.W.2d 823 (Tex. 1961)...8 Harris County v. Miller, 576 S.W.2d 808 (Tex. 1979)...8 Healthcare Centers of Texas, Inc. v. Nolen, 62 S.W.3d 813 (Tex. App. Waco 2001, no writ)...8 In re Ellebracht, 30 S.W.3d 605 (Tex. App. Texarkana 2000, no writ)...8 In re General Motors Corp., 296 S.W.3d 813 (Tex. App. Austin 2009, no pet. h)......8, 10, 12 In re Montemayor, 2 S.W.3d 542 (Tex. App. San Antonio 1999, orig. proceeding)... 8 In re Southwestern Bell Telephone Co., 35 S.W.3d 602 (Tex. 2000)...8 Marriage of Wilburn, 18 S.W.3d 837 (Tex. App. Tyler 2000, pet. denied)...9 McConnell v. May, 800 S.W.2d 194 (Tex. 1990, orig. proceeding)...8 iii

McEwen v. Harrison, 345 S.W.2d 706 (1961)...10, 11 N-S-W Corp. v. Snell, 561 S.W.2d 798 (Tex. 1977)...8 Newsom v. Bellinger I.S.D., 213 S.W.3d 375 (Tex. App. Austin 2006, no pet.).. 10, 11 Scholl v. Firemen s & Policemen s Civil Serv. Com n, 520 S.W.2d 470 (Tex. Civ. App. Corpus Christi 1975, no writ)...13 Securtec, Inc. v. County of Gregg, 106 S.W.3d 803 (Tex. App. Texarkana 2003, pet. denied)...13 South Main Bank v. Wittig, 909 S.W.2d 243 (Tex. App. Houston [14 th Dist.] 1995, no writ)...8 Stewart v. USA Custom Paint & Body Shop, Inc., 870 S.W.2d 18 (Tex. 1994)...9 Swank v. Sharp, 358 S.W.2d 950 (Tex. App. Dallas 1962, no writ)...13 Sweetwater Austin Properties v. SOS Alliance, Inc.,2009 WL 3486377 (Tex. App. Austin 2009, petition for review filed 1/15/2010)...8, 9, 11, 12 Texas Com n on Enviro. v. San Marcos River,267 S.W.3d 356 (Tex. App. Corpus Christi 2008, pet. denied)...13 Texas Healthcare Information Council v. Seton Health Plan, Inc.,94 S.W.3d 841 (Tex. App. Austin 2002, pet. denied)...13 Walker v. Harrison, 597 S.W.2d 913 (Tex. 1980)...8 STATUTES, CODES, AND REGULATIONS TEX. R. APP. P. 44.1(b) (2009)...9 TEX. R. CIV. P. 165a (2009)...6, 7, 9 Tex. R. Civ. P. 329b (2009)...6, 7, 9, 11 iv

RECORD REFERENCES 1. The Clerk s Record will be referred to as CR and will be cited by volume and page(s) [ CR p. ]. 2. The Supplemental Clerk s Record will be referred to as SCR and will be cited by volume and page(s) [ SCR p. ]. 3. The Reporter s Record will be referred to as RR and will be cited by volume and page(s) [ RR p. ]. v

NO. 05-08-01615-CV IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS IN RE ESTATE OF MARIE A. MERKEL, DECEASED INDEPENDENT EXECUTOR, MATTHEW R. POLLARD Appellant v. RUPERT M. POLLARD Appellee From the 256 th Family District Court Dallas County, Texas Honorable David Lopez, Presiding Cause No. 92-2980-Z APPELLANT S SUPPLEMENTAL BRIEF TO THE HONORABLE COURT OF APPEALS: COMES NOW Matthew R. Pollard, the Independent Executor ( Executor ) of the Estate of Marie A. Merkel, Deceased ( Estate ), and files his Appellant s Supplemental Brief, and in support thereof, would respectfully show unto the Court as follows: APPELLANT S SUPPLEMENTAL BRIEF 1 PAGE 1

STATEMENT OF THE CASE The Appellant incorporates by reference the Statement of the Case contained in the Appellant s Brief as if set forth in full herein. APPELLANT S SUPPLEMENTAL BRIEF PAGE 2

ISSUES PRESENTED 1. Whether the Trial Court lacked jurisdiction to enter the Trial Court s Order vacating the DWOP Order and dismissing the Divorce Action for want of jurisdiction more than three years after expiration of the Trial Court s plenary power? 2. Whether the Trial Court lacked jurisdiction to consider Pollard s Motion to Vacate Dismissal for Want of Prosecution and Motion to Dismiss for Lack of Subject Matter Jurisdiction because the relief sought dismissal of the case was moot since the case had already been dismissed? 3. Whether the Trial Court erred in vacating the DWOP Order and dismissing the Divorce Action for want of jurisdiction when the Trial Court s Order was based on an interlocutory Judgment of the Federal Court that found Merkel and Pollard to be married at Merkel s death, but the Fifth Circuit has now vacated the Federal Court s Judgment and dismissed the Federal Lawsuit? APPELLANT S SUPPLEMENTAL BRIEF PAGE 3

STATEMENT REGARDING ORAL ARGUMENT Appellant incorporates by reference the Statement Regarding Oral Argument contained in the Appellant s Brief as if set forth in full herein. APPELLANT S SUPPLEMENTAL BRIEF PAGE 4

I. SUMMARY OF THE ARGUMENT The Trial Court lacked jurisdiction to enter the Trial Court s Order vacating the DWOP Order and dismissing the Divorce Action for want of jurisdiction because more than three years had passed since the entry of the DWOP Order, and the Trial Court s plenary power had expired. Consequently, the Trial Court s Order should be declared void and reversed and vacated. Alternatively, the Trial Court lacked jurisdiction to consider Pollard s Motion to Vacate Dismissal for Want of Prosecution and Motion to Dismiss for Lack of Subject Matter Jurisdiction under the mootness doctrine because it sought dismissal of a case that had already been dismissed. Pollard s Motion seeking to vacate the dismissal for want of prosecution and to simultaneously dismiss for want of jurisdiction would have no practical legal effect or serve any useful or legitimate purpose. Accordingly, the Trial Court s Order should be declared void, reversed and vacated. Alternatively, the Trial Court s Order is improper because it was based on an interlocutory Judgment of the Federal Court that found that Merkel and Pollard were married at Merkel s death. However, after the filing of Appellant s Brief, the U.S. Fifth Circuit Court of Appeals vacated the Federal Court s Judgment and dismissed the Federal Lawsuit. Consequently, the Trial Court s Order should be reversed and vacated. APPELLANT S SUPPLEMENTAL BRIEF PAGE 5

II. STATEMENT OF FACTS At the time of Merkel s death in October, 2004, the Divorce Action between Merkel and Pollard was still pending (after 12 years) in the 256 th Family District Court (the Trial Court ), awaiting further proceedings regarding the disputed property division that had twice been reversed by the Court of Appeals. On February 23, 2005, the Trial Court entered an Order of Dismissal For Want of Prosecution (the DWOP Order ). 1 No party filed a motion to reinstate, vacate, modify, correct, or appealed, the DWOP Order. Accordingly, the Trial Court s plenary power expired thirty (30) days later on March 25, 2005. TEX. R. CIV. P. 165a; 329b (2009). More than TWO YEARS LATER on August 24, 2007, Pollard filed a Motion to Vacate Dismissal for Want of Prosecution and Motion to Dismiss for Lack of Subject Matter Jurisdiction (the Motion to Vacate DWOP Order ) asking the Trial Court to vacate the DWOP Order and then to dismiss the Divorce Action for want of jurisdiction. 2 Although the Trial Court promptly denied the Motion to Vacate DWOP Order, 3 Pollard continued to complain 4 and, following an interlocutory federal court ruling in a case involving the same 1 2 CR p. 300. 2 1 CR p. 168-174. 3 3RR p. 1-11; 3 RR p. 10. 4 Pollard filed an Amended Motion to Reconsider and Dismiss for Lack of Subject Matter Jurisdiction and an Amended Motion to Reconsider and Vacate Dismissal for Want of Prosecution on 9/21/07. 1 CR p. 186-189; 1 CR p. 190-194. These Amended Motions were considered at a hearing on 10/3/07. No evidence was offered and no ruling was entered. 4 RR p. 1-32. APPELLANT S SUPPLEMENTAL BRIEF PAGE 6

parties, the Trial Court reversed itself and, MORE THAN THREE YEARS AFTER entry of the DWOP Order, signed an Order on Motion to Render Decision on September 12, 2008 (the Trial Court s Order ), vacating the DWOP Order and dismissing the Divorce Action for want of jurisdiction due to Merkel s death. 5 The Trial Court s Order is the subject matter of this appeal. III. ARGUMENT AND AUTHORITIES A. THE COURT OF APPEALS SHOULD REVERSE AND VACATE THE TRIAL COURT S ORDER BECAUSE IT WAS ENTERED LONG AFTER THE TRIAL COURT S PLENARY POWER EXPIRED AND IS THEREFORE VOID. The Trial Court was without jurisdiction to vacate the DWOP Order on September 12, 2008, because the Court s plenary power expired in 2005. Accordingly, the Trial Court s Order is void and must be reversed and vacated. The Texas Rules of Civil Procedure and long-standing case law clearly and indisputably limit the time that a court has jurisdiction to reinstate a case that has been dismissed for want of prosecution or to vacate, modify, correct or change a judgment. Under the plain language of Rule 165a and 329b, the trial court retains plenary power over a judgment for only thirty (30) days after the judgment is signed (absent a timely filed motion that extends plenary power for a limited time, which was not filed in this case). 5 5 RR p.7. APPELLANT S SUPPLEMENTAL BRIEF PAGE 7

The Texas Supreme Court has repeatedly held that these time limits are mandatory and jurisdictional and that orders of reinstatement or modification entered after their expiration are void. See, e.g., In re Southwestern Bell Telephone Co., 35 S.W.3d 602, 605 (Tex. 2000); McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990, orig. proceeding); Walker v. Harrison, 597 S.W.2d 913, 915 (Tex. 1980); Harris County v. Miller, 576 S.W.2d 808, 809 (Tex.1979); Danforth Memorial Hosp. v. Harris, 573 S.W.2d 762, 763 (Tex.1978); N-S- W Corp. v. Snell, 561 S.W.2d 798, 798 (Tex.1977); Deen v. Kirk, 508 S.W.2d 70, 72 (Tex. 1974); Fulton v. Finch, 346 S.W.2d 823, 825 (Tex. 1961). Texas Court of Appeals also have consistently followed this rule. See, e.g., Sweetwater Austin Properties v. SOS Alliance, Inc., 2009 WL 3486377 (Tex. App. Austin 2009, petition for review filed 1/15/2010); In re General Motors Corp., 296 S.W.3d 813 (Tex. App. Austin 2009, no pet. h.); Healthcare Centers of Texas, Inc. v. Nolen, 62 S.W.3d 813 (Tex. App. Waco 2001, no writ); In re Ellebracht, 30 S.W.3d 605 (Tex. App. Texarkana 2000, no writ); In re Montemayor, 2 S.W.3d 542 (Tex. App.-San Antonio 1999, orig. proceeding); South Main Bank v. Wittig, 909 S.W.2d 243 (Tex. App. Houston [14 th Dist.] 1995, no writ). The purpose of the plenary power rules is to give litigants a final judgment that can be relied on. To allow a court to change its mind at any point in time and render a new judgment would defeat the purpose of the plenary power rules. In re Ellebracht, 30 S.W.3d at 609. APPELLANT S SUPPLEMENTAL BRIEF PAGE 8

In the present case, the Trial Court s Order is clearly void because it was entered long after the Trial Court s plenary power expired. The DWOP Order was signed on February 23, 2005. 6 As no party filed a motion to reinstate or to vacate, the Trial Court s plenary power expired on March 25, 2005, pursuant to Rule 165a and Rule 329b. After that date, the Trial Court was without jurisdiction to reinstate the case or to vacate the DWOP Order. The Trial Court s Order over three years later on September 12, 2008, purporting to both vacate the DWOP and reinstate the Divorce Action, was clearly outside the Trial Court s plenary power and, therefore, is void. 7 Pollard has argued that the DWOP Order was erroneous or void because Merkel and Pollard were married at Merkel s death. 8 Although Appellant disputes Pollard s legal position, the validity of the DWOP Order is not relevant to the analysis of whether the Trial Court acted outside its plenary power in entering the Trial Court s Order (vacating the DWOP Order). Sweetwater Austin Properties, 2009 WL 3486377. A trial court s plenary 6 A properly executed order of dismissal is a judgment. Stewart v. USA Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 (Tex. 1994). 7 Although the Trial Court s Order states that it is vacating the DWOP Order as a void order signed after the court s plenary power expired, that is erroneous on its face because it was the DWOP Order that triggered the period of the Court s plenary powers. [2 CR p. 300]. 8 The Probate Court has already rendered a final order determining that Merkel and Pollard were not married at Merkel s death. See Order on Show Cause dated 9/13/05 entered in Probate Cause No. 05-375-P3 [1 SCR p. 28] and Findings of Fact and Conclusions of Law entered in Probate Cause No. 05-375-P3(A) [1 SCR p. 58-59]. As fully discussed in Appellant s briefs filed in this Court, the Probate Court and the District Court, the DWOP Order was not erroneous or void because the appellate reversals regarding the Divorce Decree only affected the property division as required by TEX. R. APP. P. 44.1(b)(2009) and other cited authorities. See, e.g., Marriage of Wilburn, 18 S.W.3d 837 (Tex. App. Tyler 2000, pet. denied). Thus, the Trial Court continued to have jurisdiction over the Divorce Action after Merkel s death to resolve the pending property dispute. APPELLANT S SUPPLEMENTAL BRIEF PAGE 9

power is not contingent upon the validity of its judgment. Newsom v. Bellinger I.S.D., 213 S.W.3d 375, 379 (Tex. App. Austin 2006, no pet.) Even if the DWOP Order was erroneous or even void (which Appellant obviously denies and disputes), it still became final and the Trial Court s plenary power to vacate it or reinstate the Divorce Action expired thirty (30) days after the DWOP Order was signed. Id. Thereafter, the Trial Court could not set aside the DWOP Order except by bill of review (which was not filed). A trial court s power to set aside a void judgment was discussed extensively in the recent case of In re General Motors Corp., where the Court of Appeals held that a district court s order of dismissal inadvertently dismissing for want of prosecution an abated case pending the conclusion of an administrative proceeding (which would determine the district court s jurisdiction), could not be vacated after expiration of the district court s plenary power. 296 S.W.3d at 823. The Court of Appeals held as follows: Id. Since it had jurisdictional power to enter the 2003 order of dismissal, when the district court lost plenary power over this suit under the rules of civil procedure, it lost the power to alter its order of dismissal as part of that lawsuit. When plenary power expired, the unappealed order of dismissal was final regardless of whether it was void, voidable, or valid. Such an order may be subject to direct attack by appeal, attack by a timely bill of review, or possibly collateral attack. However, it is not subject to simply being reexamined, modified, or vacated by the trial court if the trial court were to be convinced--at some later date beyond its plenary power--that the order was, in fact, either void or voidable. The Court of Appeals in General Motors discussed the Texas Supreme Court s analysis of the question of when and how void trial court orders may be attacked in McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961): APPELLANT S SUPPLEMENTAL BRIEF PAGE 10

[In McEwen,] the supreme court recognized two types of void judgments: (1) those in which the trial court possessed the jurisdictional power to render the judgment despite the fact that there may have been an error or defect that made the judgment void, and (2) those in which the court did not even possess the jurisdictional power to hear the case and render judgment at all. 345 S.W.2d at 710. The court held that where the trial court had jurisdictional power to act, the judgment was subject to rule 329b and after plenary power expired could only be directly attacked by bill of review. See id. Only where a court did not have jurisdictional power to hear the case at all could a judgment by the court be directly attacked by other means. The McEwen court noted that if a county court rendered judgment in a suit for divorce or for title to property, these would be examples of judgments rendered by a court without the jurisdictional power to hear or render judgment in the case at all and potentially subject to direct attack other than by appeal or bill of review. See id. at 709-10. The supreme court went on to hold in McEwen that where a judgment is void due to lack of service or lack of valid service, such void judgments would be examples of judgments that are within the court's jurisdictional power to render and, consequently, that are subject to attack in the trial court after the expiration of the trial court's plenary power only by way of a bill of review due to the operation of rule 329b. See id. Id. at 822. See also Newsom, 213 S.W.3d at 379 (a judgment can become final for purposes of appeal even if void). As stated in Sweetwater Austin Properties, the fact that a judgment is void tells us nothing about whether it was rendered by a court with or without jurisdictional power. 2009 WL 3486377 *8. The Texas Supreme Court revisited the phrase without jurisdictional power in Deen v. Kirk. 508 SW2d 70 (Tex. 1974). Deen is a divorce case in which a the trial court entered a Divorce Decree despite the wife s invalid waiver of citation. Thus, the Divorce Decree was void. Almost four months later, the Court entered an order setting aside the Divorce Decree. The Court of Appeals found that the trial court had jurisdictional power to determine the validity and effectiveness of the waiver and to render a judgment for divorce. Accordingly, pursuant to Texas Rules of Civil Procedure 329b, the order purporting to set APPELLANT S SUPPLEMENTAL BRIEF PAGE 11

aside the Divorce Decree was void and should itself be set aside. The Supreme Court interpreted the phrase jurisdictional power to mean the power to hear and determine cases of the general class to which the particular one belongs. Id. at 72. If the type of case is within the court s general jurisdiction, then the court is not acting without jurisdictional power when entering a void or voidable judgment. Sweetwater Austin Properties, 2009 WL 3486377. It cannot be disputed that the 256 th Family District Court had the jurisdictional power to render a judgment for divorce and to dismiss a divorce proceeding for want of prosecution. Thus, the Trial Court s plenary power to vacate or change the DWOP Order expired 30 days after entry of such order regardless of its validity. After the Trial Court s plenary power expired, the DWOP Order was not subject to simply being re-examined, modified, or vacated by the trial court if the trial court were to be convinced--at some later date beyond its plenary power--that the order was, in fact, either void or voidable. In re General Motors Corp., 296 SW3d at 823. The Trial Court s Order vacating the DWOP Order and dismissing the case for want of jurisdiction over three years after entry of the DWOP Order, long after its plenary power had expired, is void and should be reversed and vacated. B. THE COURT OF APPEALS SHOULD REVERSE AND VACATE THE TRIAL COURT S ORDER BASED ON LACK OF SUBJECT MATTER JURISDICTION BECAUSE THE QUESTION PRESENTED WAS MOOT. The Trial Court s Order also is void for want of subject matter jurisdiction under the mootness doctrine. A case becomes moot when (1) there is no real controversy, or (2) when a party seeks judgment which, when rendered, cannot have any practical legal effect. APPELLANT S SUPPLEMENTAL BRIEF PAGE 12

Texas Com n on Enviro. v. San Marcos River, 267 S.W.3d 356, 360 (Tex. App. Corpus Christi 2008, pet. denied); Securtec, Inc. v. County of Gregg, 106 S.W.3d 803, 809 (Tex. App. Texarkana 2003, pet. denied) (citing Scholl v. Firemen s & Policemen s Civil Serv. Com n, 520 S.W.2d 470, 471 (Tex. Civ. App. Corpus Christi 1975, no writ) (actions requested in suit for declaratory and injunctive relief were taken so no controversy remained to be resolved)); Texas Healthcare Information Council v. Seton Health Plan, Inc., 94 S.W.3d 841, 846-847 (Tex. App. Austin 2002, pet. denied). Courts are not allowed to settle abstract questions, but only to correct errors injuriously affecting the rights of some party to the litigation. Accordingly,... a proceeding will be dismissed if... an event has occurred which makes a determination of it unnecessary. Swank v. Sharp, 358 S.W.2d 950, 951-952 (Tex. App. Dallas 1962, no writ). Once the Trial Court entered the DWOP Order on February 23, 2005, there was no longer any pending controversy regarding dismissal of that suit. Further, the DWOP Order was no injurious to any of Pollard s legal rights. Since the relief Pollard sought (dismissal) had already been granted, Pollard s 2007 Motion to vacate the DWOP Order only to immediately dismiss the Divorce Action for want of jurisdiction would have no practical legal affect. Thus, Pollard s challenge to the DWOP Order was moot, and the trial court APPELLANT S SUPPLEMENTAL BRIEF PAGE 13

lacked jurisdiction to consider it or to enter the Trial Court s Order. 9 Thus the Trial Court s Order is void and should be reversed and vacated. C. THE COURT OF APPEALS SHOULD REVERSE AND VACATE THE TRIAL COURT S ORDER BECAUSE IT WAS BASED ON A FEDERAL COURT DECISION THAT HAS BEEN REVERSED. 1. The Federal Lawsuit On October 16, 2006, the Executor filed suit in the United States District Court for the Northern District of Texas, against Pollard and the United States of America ( Federal Lawsuit ) to protect the property that had been Merkel s residence from Pollard s federal tax lien. As a threshold issue, Pollard and the Executor filed cross motions for summary judgment on the issue of whether Merkel and Pollard were married or divorced as of the date of Merkel s death. On July 29, 2008, the Federal Court partially granted Pollard s Motion and held that they were married at Merkel s death. 10 Once the Federal Court entered a final Judgment on February 4, 2009, 11 the Executor appealed the finding that Merkel and Pollard were married at Merkel s date of death. On November 16, 2009, the United States Court of 9 It is unclear why Pollard pursued this superfluous procedure, but it was likely an attempt (although misguided and ineffectual) to try to avoid the effect of the Probate Court s prior determinations that Merkel and Pollard were not married at Merkel s death by the Show Cause Order dated 9/13/05 entered in Cause No. 05-375-P3, and the Findings of Fact and Conclusions of Law dated 2/17/06 entered in Cause No. 05-375-P3(A) [1 SCR p. 28, 1 SCR p. 58-59]. The Executor was forced to appeal the Trial Court s Order to prevent Pollard from going down yet another procedural rabbit trail. 10 See Estate of Merkel v. United States, et al., 2008 WL 3152986 (N.D. Tex. 2008, unreported); See Estate of Merkel v. United States, et al., 2008 WL 3152974 (N.D. Tex. 2008, unreported). 11 See Estate of Merkel v. United States, et al., 2009 WL 256508 (N.D.Tex. 2009, unreported). APPELLANT S SUPPLEMENTAL BRIEF PAGE 14

Appeals for the Fifth Circuit vacated the Judgment in the Federal Suit and dismissed the case. 12 2. The Trial Court s Order When Pollard filed his original Motion to Vacate on August 24, 2007 (more than two years after entry of the DWOP Order), the Trial Court promptly convened a hearing on August 28, 2007, and denied the motion. 13 Almost a month later, Pollard filed two Amended Motions to reconsider, vacate the DWOP Order and dismiss the Divorce action for want of subject matter jurisdiction. 14 Again, the Trial Court promptly held a hearing on Pollard s Amended Motions, 15 but for almost a year, the Trial Court made no change to its prior ruling denying Pollard s motion to vacate the DWOP Order. However, shortly after the Federal Court had entered its interlocutory Judgment that Merkel and Pollard were married at Merkel s death, Pollard filed yet another Motion advising the court of the interlocutory Federal Court ruling and asking the Trial Court to vacate the DWOP Order. 16 Following a hearing on September 12, 2008, the Trial Court reversed its 2007 ruling and entered the Trial Court s Order vacating the DWOP Order and simultaneously dismissing the case for want of jurisdiction. 17 12 Estate of Merkel v. Pollard, 2009 WL 3816961 (5 th Cir., not reported). 13 3 RR p. 10. 14 1 CR p. 186-189; 1 CR p. 190-194. 15 4 RR p. 1-32. 16 2 CR p. 399-422. 17 5 RR p. 7-9. APPELLANT S SUPPLEMENTAL BRIEF PAGE 15

As discussed above, the decision of the Federal Court relied on by the Trial Court in entering the Trial Court s Order has been reversed, and the federal suit has been dismissed. Thus, the basis for the Trial Court s Order no longer exists, and the Trial Court erred in vacating the DWOP Order and dismissing the Divorce Action for want of jurisdiction. PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, Matthew R. Pollard, the Executor of the Estate of Marie A. Merkel, Deceased, respectfully requests that this Court declare that the Trial Court s Order is void, reverse and vacate the Trial Court s Order, and grant any other such further relief, at law or in equity, to which the Executor may show himself to be justly entitled. Respectfully submitted, CALLOWAY, NORRIS, BURDETTE & WEBER, PLLC /s/ Nicole P. Wolff R. W. CALLOWAY State Bar No. 03665000 MARY C. BURDETTE State Bar No. 04268800 NICOLE P. WOLFF State Bar No. 24058549 3811 Turtle Creek Blvd., Suite 400 Dallas, Texas 75219 (214) 521-1520 (214) 521-2201 - FAX Attorneys for Appellant APPELLANT S SUPPLEMENTAL BRIEF PAGE 16

CERTIFICATE OF SERVICE I hereby certify that on February 4, 2010, I served, by certified mail, return receipt requested, a true and correct copy of the above and foregoing to the following: Portia J. Bott 5511 Parkcrest Drive, Suite 107 Austin, Texas 78731 /s/ Nicole P. Wolff NICOLE P. WOLFF APPELLANT S SUPPLEMENTAL BRIEF PAGE 17