ACCEPTED 01-15-01000-CV FIRST COURT OF APPEALS Appellate Docket Number: 01-15-01000-CV HOUSTON, TEXAS 12/23/2015 9:21:33 AM CHRISTOPHER PRINE Appellate Case Style: American Homes 4 Rent CLERK
Vs. John G. Kirk Melanie D. Kirk
Companion Case No.: FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 12/23/2015 9:21:33 AM Amended/corrected statement: DOCKETING STATEMENT (Civil) CHRISTOPHER A. PRINE Clerk Appellate Court:1st Court of Appeals (to be filed in the court of appeals upon perfection of appeal under TRAP 32)
I. Appellant II. Appellant Attorney(s) Person Organization (choose one) Lead Attorney Organization Name: American Homes 4 Rent First Name: David First Name: Middle Name: Middle Name: Last Name: Barry Last Name: Suffix: Suffix: Law Firm Name: Barry & Sewart, PLLC
Pro Se: Address 1: 4151 Southwest Freeway Address 2: Ste. 680 City: Houston State: Texas Zip+4: 77027 Telephone: (713) 722-0281 ext. Fax: (713) 722-9786 Email: efile@barryandsewart.com SBN: 01835200
III. Appellee IV. Appellee Attorney(s) Person Organization (choose one) Lead Attorney First Name: Colleen First Name: John Middle Name: M Middle Name: G. Last Name: McClure Last Name: Kirk Suffix: Suffix: Law Firm Name: Pro Se: Address 1: 3648 Cypress Creek Parkway Address 2: suite 229 City: Houston State: Texas Zip+4: 77068 Telephone: (281) 440-1625 ext. Fax: Email: SBN: 24012121 Page 1 of 8 III. Appellee IV. Appellee Attorney(s) Person Organization (choose one) Lead Attorney First Name: First Name: Melanie Middle Name: Middle Name: D. Last Name: Last Name: Kirk Suffix: Suffix: Law Firm Name: Pro Se: Address 1: Address 2: City: State: Texas Zip+4: Telephone: ext. Fax: Email: SBN:
Page 2 of 8 V. Perfection Of Appeal And Jurisdiction
Nature of Case (Subject matter or type of case): Real Property
Date order or judgment signed: August 21, 2015 Type of judgment: Bench Trial Date notice of appeal filed in trial court: November 3, 2015 If mailed to the trial court clerk, also give the date mailed: Interlocutory appeal of appealable order: Yes No If yes, please specify statutory or other basis on which interlocutory order is appealable (See TRAP 28):
Accelerated appeal (See TRAP 28): Yes No If yes, please specify statutory or other basis on which appeal is accelerated:
Parental Termination or Child Protection? (See TRAP 28.4): Yes No
Permissive? (See TRAP 28.3): Yes No If yes, please specify statutory or other basis for such status:
Agreed? (See TRAP 28.2): Yes No If yes, please specify statutory or other basis for such status:
Appeal should receive precedence, preference, or priority under statute or rule: Yes No If yes, please specify statutory or other basis for such status:
Does this case involve an amount under $100,000? Yes No Judgment or order disposes of all parties and issues: Yes No Appeal from final judgment: Yes No Does the appeal involve the constitutionality or the validity of a statute, rule, or ordinance? Yes No
VI. Actions Extending Time To Perfect Appeal
Motion for New Trial: Yes No If yes, date filed: September 16, 2015 Motion to Modify Judgment: Yes No If yes, date filed: Request for Findings of Fact Yes No If yes, date filed: and Conclusions of Law: Yes No If yes, date filed: Motion to Reinstate: Yes No If yes, date filed: Motion under TRCP 306a: Other: Yes No If other, please specify:
VII. Indigency Of Party: (Attach file-stamped copy of affidavit, and extension motion if filed.)
Affidavit filed in trial court: Yes No If yes, date filed:
Contest filed in trial court: Yes No If yes, date filed:
Date ruling on contest due:
Ruling on contest: Sustained Overruled Date of ruling:
Page 3 of 8 VIII. Bankruptcy
Has any party to the court's judgment filed for protection in bankruptcy which might affect this appeal? Yes No If yes, please attach a copy of the petition.
Date bankruptcy filed: Bankruptcy Case Number:
IX. Trial Court And Record
Court: Galveston County Court at Law No 3 Clerk's Record: County: Galveston Trial Court Clerk: District County Trial Court Docket Number (Cause No.): CV-0073968 Was clerk's record requested? Yes No If yes, date requested: Trial Judge (who tried or disposed of case): If no, date it will be requested: First Name: Jack Were payment arrangements made with clerk? Middle Name: Yes No Indigent Last Name: Ewing (Note: No request required under TRAP 34.5(a),(b)) Suffix: Address 1: 600 59th Street Address 2 : Ste 2205 City: Galveston State: Texas Zip + 4: 4180 Telephone: (409) 621-7920 ext. Fax: Email:
Reporter's or Recorder's Record:
Is there a reporter's record? Yes No Was reporter's record requested? Yes No
Was there a reporter's record electronically recorded? Yes No If yes, date requested: November 19, 2015
If no, date it will be requested: Were payment arrangements made with the court reporter/court recorder? Yes No Indigent
Page 4 of 8 Court Reporter Court Recorder Official Substitute
First Name: Amri Middle Name: N Last Name: Davison Suffix: Address 1: 600 59th Street Address 2: City: Galveston State: Texas Zip + 4: Telephone: (409)621-7921 ext. Fax: (409)765-3154 Email: Amri.Davison@co.galveston.tx.us
X. Supersedeas Bond Supersedeas bond filed: Yes No If yes, date filed:
Will file: Yes No
XI. Extraordinary Relief
Will you request extraordinary relief (e.g. temporary or ancillary relief) from this Court? Yes No If yes, briefly state the basis for your request:
XII. Alternative Dispute Resolution/Mediation (Complete section if filing in the 1st, 2nd, 4th, 5th, 6th, 8th, 9th, 10th, 11th, 12th, 13th, or 14th Court of Appeal) Should this appeal be referred to mediation? Yes No
If no, please specify: Has the case been through an ADR procedure? Yes No If yes, who was the mediator? What type of ADR procedure? At what stage did the case go through ADR? Pre-Trial Post-Trial Other
If other, please specify:
Type of case? Give a brief description of the issue to be raised on appeal, the relief sought, and the applicable standard for review, if known (without prejudice to the right to raise additional issues or request additional relief):
How was the case disposed of? Other Summary of relief granted, including amount of money judgment, and if any, damages awarded. $10,250.00 in damages; attorney fees $3500 If money judgment, what was the amount? Actual damages: $10,250.00 Punitive (or similar) damages:
Page 5 of 8 Attorney's fees (trial): $3,500.00 Attorney's fees (appellate): Other: If other, please specify:
Will you challenge this Court's jurisdiction? Yes No Does judgment have language that one or more parties "take nothing"? Yes No Does judgment have a Mother Hubbard clause? Yes No Other basis for finality? Rate the complexity of the case (use 1 for least and 5 for most complex): 1 2 3 4 5 Please make my answer to the preceding questions known to other parties in this case. Yes No Can the parties agree on an appellate mediator? Yes No If yes, please give name, address, telephone, fax and email address: Name Address Telephone Fax Email
Languages other than English in which the mediator should be proficient: Name of person filing out mediation section of docketing statement:
XIII. Related Matters List any pending or past related appeals before this or any other Texas appellate court by court, docket number, and style.
Docket Number: Trial Court:
Style:
Vs.
Page 6 of 8 XIV.
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ACCEPTED 01-15-01000-CV FIRST COURT OF APPEALS Appellate Docket Number: 01-15-01000-CV HOUSTON, TEXAS 12/23/2015 9:21:33 AM CHRISTOPHER PRINE Appellate Case Style: American Homes 4 Rent CLERK
Vs. John G. Kirk Melanie D. Kirk
Companion Case No.: FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 12/23/2015 9:21:33 AM Amended/corrected statement: DOCKETING STATEMENT (Civil) CHRISTOPHER A. PRINE Clerk Appellate Court:1st Court of Appeals (to be filed in the court of appeals upon perfection of appeal under TRAP 32)
I. Appellant II. Appellant Attorney(s) Person Organization (choose one) Lead Attorney Organization Name: American Homes 4 Rent First Name: David First Name: Middle Name: Middle Name: Last Name: Barry Last Name: Suffix: Suffix: Law Firm Name: Barry & Sewart, PLLC
Pro Se: Address 1: 4151 Southwest Freeway Address 2: Ste. 680 City: Houston State: Texas Zip+4: 77027 Telephone: (713) 722-0281 ext. Fax: (713) 722-9786 Email: efile@barryandsewart.com SBN: 01835200
III. Appellee IV. Appellee Attorney(s) Person Organization (choose one) Lead Attorney First Name: Colleen First Name: John Middle Name: M Middle Name: G. Last Name: McClure Last Name: Kirk Suffix: Suffix: Law Firm Name: Pro Se: Address 1: 3648 Cypress Creek Parkway Address 2: suite 229 City: Houston State: Texas Zip+4: 77068 Telephone: (281) 440-1625 ext. Fax: Email: SBN: 24012121 Page 1 of 8 III. Appellee IV. Appellee Attorney(s) Person Organization (choose one) Lead Attorney First Name: First Name: Melanie Middle Name: Middle Name: D. Last Name: Last Name: Kirk Suffix: Suffix: Law Firm Name: Pro Se: Address 1: Address 2: City: State: Texas Zip+4: Telephone: ext. Fax: Email: SBN:
Page 2 of 8 V. Perfection Of Appeal And Jurisdiction
Nature of Case (Subject matter or type of case): Real Property
Date order or judgment signed: August 21, 2015 Type of judgment: Bench Trial Date notice of appeal filed in trial court: November 3, 2015 If mailed to the trial court clerk, also give the date mailed: Interlocutory appeal of appealable order: Yes No If yes, please specify statutory or other basis on which interlocutory order is appealable (See TRAP 28):
Accelerated appeal (See TRAP 28): Yes No If yes, please specify statutory or other basis on which appeal is accelerated:
Parental Termination or Child Protection? (See TRAP 28.4): Yes No
Permissive? (See TRAP 28.3): Yes No If yes, please specify statutory or other basis for such status:
Agreed? (See TRAP 28.2): Yes No If yes, please specify statutory or other basis for such status:
Appeal should receive precedence, preference, or priority under statute or rule: Yes No If yes, please specify statutory or other basis for such status:
Does this case involve an amount under $100,000? Yes No Judgment or order disposes of all parties and issues: Yes No Appeal from final judgment: Yes No Does the appeal involve the constitutionality or the validity of a statute, rule, or ordinance? Yes No
VI. Actions Extending Time To Perfect Appeal
Motion for New Trial: Yes No If yes, date filed: September 16, 2015 Motion to Modify Judgment: Yes No If yes, date filed: Request for Findings of Fact Yes No If yes, date filed: and Conclusions of Law: Yes No If yes, date filed: Motion to Reinstate: Yes No If yes, date filed: Motion under TRCP 306a: Other: Yes No If other, please specify:
VII. Indigency Of Party: (Attach file-stamped copy of affidavit, and extension motion if filed.)
Affidavit filed in trial court: Yes No If yes, date filed:
Contest filed in trial court: Yes No If yes, date filed:
Date ruling on contest due:
Ruling on contest: Sustained Overruled Date of ruling:
Page 3 of 8 VIII. Bankruptcy
Has any party to the court's judgment filed for protection in bankruptcy which might affect this appeal? Yes No If yes, please attach a copy of the petition.
Date bankruptcy filed: Bankruptcy Case Number:
IX. Trial Court And Record
Court: Galveston County Court at Law No 3 Clerk's Record: County: Galveston Trial Court Clerk: District County Trial Court Docket Number (Cause No.): CV-0073968 Was clerk's record requested? Yes No If yes, date requested: Trial Judge (who tried or disposed of case): If no, date it will be requested: First Name: Jack Were payment arrangements made with clerk? Middle Name: Yes No Indigent Last Name: Ewing (Note: No request required under TRAP 34.5(a),(b)) Suffix: Address 1: 600 59th Street Address 2 : Ste 2205 City: Galveston State: Texas Zip + 4: 4180 Telephone: (409) 621-7920 ext. Fax: Email:
Reporter's or Recorder's Record:
Is there a reporter's record? Yes No Was reporter's record requested? Yes No
Was there a reporter's record electronically recorded? Yes No If yes, date requested: November 19, 2015
If no, date it will be requested: Were payment arrangements made with the court reporter/court recorder? Yes No Indigent
Page 4 of 8 Court Reporter Court Recorder Official Substitute
First Name: Amri Middle Name: N Last Name: Davison Suffix: Address 1: 600 59th Street Address 2: City: Galveston State: Texas Zip + 4: Telephone: (409)621-7921 ext. Fax: (409)765-3154 Email: Amri.Davison@co.galveston.tx.us
X. Supersedeas Bond Supersedeas bond filed: Yes No If yes, date filed:
Will file: Yes No
XI. Extraordinary Relief
Will you request extraordinary relief (e.g. temporary or ancillary relief) from this Court? Yes No If yes, briefly state the basis for your request:
XII. Alternative Dispute Resolution/Mediation (Complete section if filing in the 1st, 2nd, 4th, 5th, 6th, 8th, 9th, 10th, 11th, 12th, 13th, or 14th Court of Appeal) Should this appeal be referred to mediation? Yes No
If no, please specify: Has the case been through an ADR procedure? Yes No If yes, who was the mediator? What type of ADR procedure? At what stage did the case go through ADR? Pre-Trial Post-Trial Other
If other, please specify:
Type of case? Give a brief description of the issue to be raised on appeal, the relief sought, and the applicable standard for review, if known (without prejudice to the right to raise additional issues or request additional relief):
How was the case disposed of? Other Summary of relief granted, including amount of money judgment, and if any, damages awarded. $10,250.00 in damages; attorney fees $3500 If money judgment, what was the amount? Actual damages: $10,250.00 Punitive (or similar) damages:
Page 5 of 8 Attorney's fees (trial): $3,500.00 Attorney's fees (appellate): Other: If other, please specify:
Will you challenge this Court's jurisdiction? Yes No Does judgment have language that one or more parties "take nothing"? Yes No Does judgment have a Mother Hubbard clause? Yes No Other basis for finality? Rate the complexity of the case (use 1 for least and 5 for most complex): 1 2 3 4 5 Please make my answer to the preceding questions known to other parties in this case. Yes No Can the parties agree on an appellate mediator? Yes No If yes, please give name, address, telephone, fax and email address: Name Address Telephone Fax Email
Languages other than English in which the mediator should be proficient: Name of person filing out mediation section of docketing statement:
XIII. Related Matters List any pending or past related appeals before this or any other Texas appellate court by court, docket number, and style.
Docket Number: Trial Court:
Style:
Vs.
Page 6 of 8 XIV. Pro Bono Program: (Complete section if filing in the 1st, 3rd, 5th, or 14th Courts of Appeals) The Courts of Appeals listed above, in conjunction with the State Bar of Texas Appellate Section Pro Bono Committee and local Bar Associations, are conducting a program to place a limited number of civil appeals with appellate counsel who will represent the appellant in the appeal before this Court.
The Pro Bono Committee is solely responsible for screening and selecting the civil cases for inclusion in the Program based upon a number of discretionary criteria, including the financial means of the appellant or appellee. If a case is selected by the Committee, and can be matched with appellate counsel, that counsel will take over representation of the appellant or appellee without charging legal fees. More information regarding this program can be found in the Pro Bono Program Pamphlet available in paper form at the Clerk's Office or on the Internet at www.tex-app.org. If your case is selected and matched with a volunteer lawyer, you will receive a letter from the Pro Bono Committee within thirty (30) to forty-five (45) days after submitting this Docketing Statement. Note: there is no guarantee that if you submit your case for possible inclusion in the Pro Bono Program, the Pro Bono Committee will select your case and that pro bono counsel can be found to represent you. Accordingly, you should not forego seeking other counsel to represent you in this proceeding. By signing your name below, you are authorizing the Pro Bono committee to transmit publicly available facts and information about your case, including parties and background, through selected Internet sites and Listserv to its pool of volunteer appellate attorneys. Do you want this case to be considered for inclusion in the Pro Bono Program? Yes No
Do you authorize the Pro Bono Committee to contact your trial counsel of record in this matter to answer questions the committee may have regarding the appeal? Yes No
Please note that any such conversations would be maintained as confidential by the Pro Bono Committee and the information used solely for the purposes of considering the case for inclusion in the Pro Bono Program.
If you have not previously filed an affidavit of Indigency and attached a file-stamped copy of that affidavit, does your income exceed 200% of the U.S. Department of Health and Human Services Federal Poverty Guidelines? Yes No
These guidelines can be found in the Pro Bono Program Pamphlet as well as on the internet at http://aspe.hhs.gov/poverty/06poverty.shtml.
Are you willing to disclose your financial circumstances to the Pro Bono Committee? Yes No If yes, please attach an Affidavit of Indigency completed and executed by the appellant or appellee. Sample forms may be found in the Clerk's Office or on the internet at http://www.tex-app.org. Your participation in the Pro Bono Program may be conditioned upon your execution of an affidavit under oath as to your financial circumstances.
Give a brief description of the issues to be raised on appeal, the relief sought, and the applicable standard of review, if known (without prejudice to the right to raise additional issues or request additional relief; use a separate attachment, if necessary).
XV. Signature
Signature of counsel (or pro se party) Date: December 23, 2015
Printed Name: Keith A. Wolfshohl State Bar No.: 24047135
Electronic Signature: Keith A. Wolfshohl (Optional)
Page 7 of 8 XVI. Certificate of Service
The undersigned counsel certifies that this docketing statement has been served on the following lead counsel for all parties to the trial court's order or judgment as follows on December 23, 2015 .
Signature of counsel (or pro se party) Electronic Signature: Keith A. Wolfshohl (Optional)
State Bar No.: 24047135 Person Served Certificate of Service Requirements (TRAP 9.5(e)): A certificate of service must be signed by the person who made the service and must state: (1) the date and manner of service; (2) the name and address of each person served, and (3) if the person served is a party's attorney, the name of the party represented by that attorney
Please enter the following for each person served:
Date Served: December 23, 2015 Manner Served: eServed
First Name: Colleen
Middle Name: Last Name: McClure Suffix: Law Firm Name: Address 1: 3648 Cypress Creek Parkway Address 2: City: Houston State Texas Zip+4: 77575 Telephone: (218) 440-1625 ext. Fax: (281) 440-1693
Email: Colleen.McClure@att.net
If Attorney, Representing Party's Name: John Kirk and Melanie Kirk
Page 8 of 8