Glenn Beckendorff, in His Official Capacity as Waller County Judge, Frank Pokluda, in His Official Capacity as Waller County Precinct Two Commission, and Stan Kitzman v. City of Hempstead, Texas and Citizens Against the Landfill in Hempstead and Pintail Landfill, LLC

• Court: Court of Appeals of Texas
• Decided: April 9, 2015
• Docket: 14-15-00322-CV
• Status: Published

Opinion

ACCEPTED 14-15--00322-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 4/9/2015 11:32:02 AM CHRISTOPHER PRINE CLERK

NO. 14-15-00322-CV

FILED IN 14th COURT OF APPEALS IN THE COURT OF APPEALS HOUSTON, TEXAS FOURTEENTH JUDICIAL DISTRICT OF TEXAS 4/9/2015 11:32:02 AM HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk

GLENN BECKENDORFF,

Appellant, v.

CITY OF HEMPSTEAD, TEXAS, CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD, and PINTAIL LANDFILL, LLC,

Appellees.

MOTION FOR 15-DAY EXTENSION OF TIME TO FILE NOTICE OF APPEAL

TO THE HONORABLE COURT OF APPEALS:

Appellant/Movant makes this motion to Extend the Time for Filing the

Notice of Appeal in this Cause.

1. This appeal arises from what purports to be an “Agreed Final

Judgment” signed on February 20, 2015 in Cause Number 13-03-21872 in the

506th District Court of Waller County, Texas.

1 2. The Notice of Appeal was due on March 23, 2015. However, the

attorney for Appellant requests a 15-day extension to file the Notice of Appeal

for the reasons set forth below. The Notice of Appeal was filed on April 2,

2015 with the Waller County District Clerk’s Office (Exhibit C).

On December 1, 2014, the case was called for trial. All parties

appeared through their attorneys of record and announced ready for

trial. A jury, consisting of 12 qualified jurors having been previously

demanded, was duly empanelled and the case proceeded to trial. At

the conclusion of the evidence, the Court submitted the questions of

fact in the case to the jury and a verdict was returned.

Before a final judgment was signed in accordance with the jury

verdict, a settlement was supposedly reached. The settlement was

supposedly in the form of an Agreed Final Judgment, but former County

Judge Glenn Beckendorff had not been given notice of such Agreed

Final Judgment. (See Affidavit of Judge Glenn Beckendorff - Exhibit A

and Affidavit of David Carp - Exhibit B).

Further, there is no longer a justiciable controversy that exists

against Judge Beckendorff as he no longer holds public office for Waller

County, Texas. Specifically, a declaratory judgment is appropriate only

2 if a justiciable controversy exists as to the rights and status of the

parties and the controversy will be resolved by the declaration sought.

To constitute a justiciable controversy, there must exist a real and

substantial controversy involving genuine conflict of tangible interest,

not merely a theoretical dispute. Bonham State Bank v. Beadle, 907

S.W.2d 465 (Tex. 1995); Noell v. Air Park Homeowners Ass’n, Inc., 246

S.W.3d 827 (Tex. App. Dallas 2008), petition for review filed, (Nov. 6,

2008). A UDJA action will lie within the subject-matter jurisdiction of the

district courts when there is (1) a justiciable controversy as to the rights

and status of parties actually before the court for adjudication; and (2)

the controversy will be actually resolved by the declaration sought.

Brooks v. Northglen Ass’n, 141 S.W.3d 158 (Tex. 2004); Texas Dept.

of Ins. v Reconveyance Services, Inc., 240 S.W.3d 418 (Tex. App.

Austin 2007), petition for review filed, (Nov. 14, 2007).

3. This is Appellant’s first request for an extension to file the Notice

of Appeal.

4. Counsel for Appellant needs an additional 15 days to and

including April 6, 2015, to file Appellant’s Notice of Appeal.

3 5. This extension is not requested for delay, but so that justice may

be done.

CERTIFICATE OF CONFERENCE

Mr. Carp states that on April 2, 2015 an email was sent to all trial

counsel for appellees in this matter asking whether they were opposed or

unopposed to this motion. The email was followed up on the same day by

telephone calls. As of the date of the filing of this motion, we have the

following responses:

Art Pertile/Corey Ouslander Mr. Outlander stated they (City of Hempstead) were opposed

James P. Allison / Eric Magee Mr. Magee stated they no (Waller County) longer represented Waller County

Brent Ryan Not opposed (Pintail Landfill)

Blayre Pena (maternity leave) spoke with Mary (paralegal) who was going to give message and email to two attorneys covering for Ms. Pena. Have not heard back (Citizens Against Landfill)

Carol Chaney No response yet to email; (Citizens Against Landfill) voice mail was “full”

4 WHEREFORE, Appellant respectfully request this Court extend the time

for filing Appellant’s Notice of Appeal to and including April 6, 2015, and for

all other relief to which he may be entitled.

Dated: April 3, 2015 Respectfully submitted,

/s/ David A. Carp David A. Carp TBN: 03836500 Herzog & Carp 427 Mason Park Boulevard Katy, Texas 77450 713.781.7500 Phone 713.781.4797 Fax dcarp@hcmlegal.com

Attorneys for Appellants

5 CERTIFICATE OF SERVICE

I hereby certify that on April 9, 2015 a true and correct copy of the foregoing Appellants’ Motion for 15-Day Extension of Time to File Notice of Appeal was delivered via e-mail.

James P. Allison J. Eric Magee Allison, Bass & Magee, LLP A. O. Watson House 402 W. 12th Street Austin, Texas 78701 j.allison@allison-bass.com Attorneys for Waller County, Texas and Waller County Commissioners Court

Arthur L. Pertile III Kelly Dempsey Corey R. Ouslander Olson & Olson, LLP Wortham Tower, Suite 600 2727 Allen Parkway Houston, Texas 77019 apertile@olsonllp.com Attorneys for City of Hempstead

Terry L. Scarborough Michael L. Woodward V. Blayre Pena Hance Scarborough, LLP 400 W 15th #950 Austin, Texas 78701 bpena@hslawmail.com

6 Carol A. Chaney Law Office of Carol A. Chaney 820 13th Street P.O. Box 966 Hempstead, Texas 77445

Attorneys for Citizens Against the Landfill in Hempstead

Brent W. Ryan McElroy, Sullivan & Miller, LLP P.O. Box 12127 Austin, Texas 78711 bryan@msmtx.com

Attorneys for Pintail Landfill, LLC

/s/ David A. Carp