ACCEPTED 03-14-00725-CV 4114034 THIRD COURT OF APPEALS AUSTIN, TEXAS 2/11/2015 3:46:31 PM JEFFREY D. KYLE CLERK CAUSE NO. 03-14-00725-CV
FILED IN IN THE 3rd COURT OF APPEALS AUSTIN, TEXAS THIRD COURT OF APPEALS 2/11/2015 3:46:31 PM AUSTIN, TEXAS JEFFREY D. KYLE Clerk
GEORGE GREEN Appellant
vs. PORT OF CALL HOMEOWNERS ASSOCIATION, RANDOLPH HARIG, PHILLIP JACOBS, JOHN ROSS BUCHHOLTZ AND RICHARD PAT MCELROY
Appellees
On Appeal from the 33Ro DISTRICT COURT of LLANO COUNTY, TEXAS
APPELLEES' MOTION TO DISMISS APPELLANT'S APPEAL BECAUSE OF MOOTNESS
TO THE HONORABLE THIRD COURT OF APPEALS:
NOW COME PORT OF CALL HOMEOWNERS ASSOCIATION, RANDOLPH HARIG, PHILLIP JACOBS, JOHN ROSS BUCHHOLTZ AND RICHARD PAT MCELROY ("Appellees"), filing their Motion to Dismiss Appellant's Appeal Because of Mootness, and would show unto this Court as follows: A. PARTIES
1. Appellant Garlan Green was a member of the Port of Call Homeowners Association (HOA). Garlan Green has passed away .1
2. Appellant George Green is Garlan's son and has represented him in this suit by a Power of Attorney. (CR 136).
3. Appellees are the HOA and individual board members.
B. INTRODUCTION
4. While subject to further discovery, the underlying case involves claims against the Appellees for allegedly violating the organizational documents of the Homeowners' Association, for breach of contract, breach of the Property Code, and a breach of fiduciary duty. (CR 136-143)
5. Appellant seeks review of an order he claims to be an injunction by this Appeal. He bases the appeal on §51.014(a)(4) and Chapter 65 of the Texas Civil Practice and Remedies Code. Appellees believe that the order from which Appellant seeks relief is a discovery order. Wood v Moriarty, 940 S.W.2d 359 (Tex. App-Dallas, 1997, no pet.)
c. PROCEDURAL HISTORY
6. In the trial court, the Appellees filed a motion seeking protection from Appellant George Green's discovery actions. (CR 114-130) After an order for protection was granted (CR 131-132), Appellant George Green continued conduct Appellees believed subject to the order of protection. Thus, Appellees filed a Motion to Enforce the Order. (CR 153). A hearing was held on that motion on October 14, 2014. (CR 175) The Judge granted the Motion to Enforce the Protective Order and entered an order on October 21, 2014. (CR 175f That is the order that is the subject of this appeal.
1 It is possible this appeal and suit may not survive the death of Garlan Green. Zipp v. Wuemling, 218 S.W.3d 71 (2007). 2 A copy of that Order was also attached to Appellant's Docketing Statement.
-2- 7. The parties agreed that Appellees' deadline to file a brief is extended until March 3, 2015.
D. APPEAL IS NOW MOOT
8. On January 30, 2015, a hearing was held in the District Court and the District Court vacated the Order of October 21, 2014, the subject of this appeal, (Ex. A, attachment 1) Appellees have made a request to supplement the Clerk's Record with copies of the order from that hearing.
9. In light of the District Court actions, this court now has the authority to dismiss this appeal for lack of jurisdiction because there is no longer an issue in controversy. See: Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821 (Tex. 2000); Texas A&M University-Kingsville v. Yarbrough, 347 S.W.3d 289, 291 (Tex. 2011); National Collegiate Athletic Association v. Jones, 1 S.W.3d 83, 86 (Tex. 1999).
10. More specifically, this court has the authority to dismiss this appeal because the discovery order complained of has been vacated. In re Campbell, 106 S. W.3d 788 (Tex. App.-Texarkana 2003)(trial court order vacating earlier contempt order moots appeal because order no longer exists); In re Sunbelt Rentals, Inc., Relator 2014 WL 7172474 (Tex. App.-Houston [1st Dist.] 2014) (memorandum opinion)(mandamus action moot where order at issue vacated); In re: Ropal Anderson, 2015 WL 504971 (Tex. App.-San Antonio 2015) (memorandum opinion)(when trial court vacated order at issue that mooted mandamus). For these reasons, Appellees ask this Court to dismiss the appeal.
E. VERIFICATION
10 Appellees attach as Exhibit A an affidavit to this motion to confirm facts that are not yet included in the appellate record, and may not be known to the Court in its official capacity. Tex. R. App. P. 10.2. In addition, this Court could take judicial notice of the trial court's order executed January 30, 2015 and included as attachment to Exhibit A.
-3- F. CONCLUSION
WHEREFORE, PREMISES CONSIDERED, Appellees pray that the Court of Appeals for the Third District of Texas at Austin dismiss this appeal because there is no longer an issue in controversy, Appellees further pray the Court extend the deadline to file a brief in the unlikely event this Motion is denied until 30 days after the Court rules on this Motion, and further pray for further relief that they may be justly entitled to at law or in equity.
Respectfully submitted,
WRIGHT & GREENHILL, P.C. 221 W. 6th Street, Suite 1800 Austin, Texas 78701 512/476-4600 512/476-5382 (Fax) rpringle@w-g.com hcou ghl in@ w- g .com mthomQson@w-g.com
Is/ Mike Thompson, Jr.
Brantley Ross Pringle, Jr. State Bar No. 16330001 Heidi A. Coughlin State Bar No. 24059615 Mike Thompson, Jr. State Bar No. 19898200
ATTORNEYS FOR APPELLEES PORT OF CALL HOMEOWNERS ASSOCIATION, RANDOLPH HARIG, PHILLIP JACOBS, JOHN ROSS BUCHHOLTZ AND RICHARD PAT MCELROY
-4- CERTIFICATE OF CONFERENCE
Appellant would not agree to this Motion.
NOTICE OF ELECTRONIC FILING
The undersigned counsel certifies that on 11th day of February, 2015, he has electronically filed the foregoing document with the Third Court of Appeals Austin, Texas, Clerk's Office using the electronic filing system through ProDoc efiling2 and counsel will send notification of such filing to Mr. David Junkin and Mr. L. Hayes Fuller, III.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing has been served on the following via facsimile or certified mail, return receipt requested, in accordance with the Texas Rules of Civil Procedure, on this 11 1h day of February, 2015.
David Junkin LAW OFFICE OF DAVID JUNKIN P. 0. Box 2910 Wimberley, TX 78676
L. Hayes Fuller, III NAMAN HOWELL SMITH & LEE, P.L.L.C 400 Austin A venue, Suite 800 P. 0. Box 1470 Waco, TX 75703-1470
/s/ Mike Thompson, Jr. Brantley Ross Pringle, Jr. Heidi Coughlin Mike Thompson, Jr.
-5- EXHIBIT A CAUSE NO. 03-14-00725-CV
IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS
GEORGE GREEN Appellant
VS.
PORT OF CALL HOMEOWNERS ASSOCIATION, RANDOLPH HARIG, PHILLIP JACOBS, JOHN ROSS BUCHHOLTZ AND RICHARD PAT MCELROY
Appellees
On Appeal from the 33Ro DISTRICT COURT of LLANO COUNTY, TEXAS
AFFIDAVIT OF MIKE THOMPSON, .JR.
BEFORE ME, the undersigned notary, personally appeared Mike
Thompson, Jr., the Affiant, a person whose identity is known to me. After I
administered an oath, Affiant testified as follows:
1. "My name is Mike Thompson, Jr. I am over 18 years of age, of sound mind, and capable of making this Affidavit.
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ACCEPTED 03-14-00725-CV 4114034 THIRD COURT OF APPEALS AUSTIN, TEXAS 2/11/2015 3:46:31 PM JEFFREY D. KYLE CLERK CAUSE NO. 03-14-00725-CV
FILED IN IN THE 3rd COURT OF APPEALS AUSTIN, TEXAS THIRD COURT OF APPEALS 2/11/2015 3:46:31 PM AUSTIN, TEXAS JEFFREY D. KYLE Clerk
GEORGE GREEN Appellant
vs. PORT OF CALL HOMEOWNERS ASSOCIATION, RANDOLPH HARIG, PHILLIP JACOBS, JOHN ROSS BUCHHOLTZ AND RICHARD PAT MCELROY
Appellees
On Appeal from the 33Ro DISTRICT COURT of LLANO COUNTY, TEXAS
APPELLEES' MOTION TO DISMISS APPELLANT'S APPEAL BECAUSE OF MOOTNESS
TO THE HONORABLE THIRD COURT OF APPEALS:
NOW COME PORT OF CALL HOMEOWNERS ASSOCIATION, RANDOLPH HARIG, PHILLIP JACOBS, JOHN ROSS BUCHHOLTZ AND RICHARD PAT MCELROY ("Appellees"), filing their Motion to Dismiss Appellant's Appeal Because of Mootness, and would show unto this Court as follows: A. PARTIES
1. Appellant Garlan Green was a member of the Port of Call Homeowners Association (HOA). Garlan Green has passed away .1
2. Appellant George Green is Garlan's son and has represented him in this suit by a Power of Attorney. (CR 136).
3. Appellees are the HOA and individual board members.
B. INTRODUCTION
4. While subject to further discovery, the underlying case involves claims against the Appellees for allegedly violating the organizational documents of the Homeowners' Association, for breach of contract, breach of the Property Code, and a breach of fiduciary duty. (CR 136-143)
5. Appellant seeks review of an order he claims to be an injunction by this Appeal. He bases the appeal on §51.014(a)(4) and Chapter 65 of the Texas Civil Practice and Remedies Code. Appellees believe that the order from which Appellant seeks relief is a discovery order. Wood v Moriarty, 940 S.W.2d 359 (Tex. App-Dallas, 1997, no pet.)
c. PROCEDURAL HISTORY
6. In the trial court, the Appellees filed a motion seeking protection from Appellant George Green's discovery actions. (CR 114-130) After an order for protection was granted (CR 131-132), Appellant George Green continued conduct Appellees believed subject to the order of protection. Thus, Appellees filed a Motion to Enforce the Order. (CR 153). A hearing was held on that motion on October 14, 2014. (CR 175) The Judge granted the Motion to Enforce the Protective Order and entered an order on October 21, 2014. (CR 175f That is the order that is the subject of this appeal.
1 It is possible this appeal and suit may not survive the death of Garlan Green. Zipp v. Wuemling, 218 S.W.3d 71 (2007). 2 A copy of that Order was also attached to Appellant's Docketing Statement.
-2- 7. The parties agreed that Appellees' deadline to file a brief is extended until March 3, 2015.
D. APPEAL IS NOW MOOT
8. On January 30, 2015, a hearing was held in the District Court and the District Court vacated the Order of October 21, 2014, the subject of this appeal, (Ex. A, attachment 1) Appellees have made a request to supplement the Clerk's Record with copies of the order from that hearing.
9. In light of the District Court actions, this court now has the authority to dismiss this appeal for lack of jurisdiction because there is no longer an issue in controversy. See: Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821 (Tex. 2000); Texas A&M University-Kingsville v. Yarbrough, 347 S.W.3d 289, 291 (Tex. 2011); National Collegiate Athletic Association v. Jones, 1 S.W.3d 83, 86 (Tex. 1999).
10. More specifically, this court has the authority to dismiss this appeal because the discovery order complained of has been vacated. In re Campbell, 106 S. W.3d 788 (Tex. App.-Texarkana 2003)(trial court order vacating earlier contempt order moots appeal because order no longer exists); In re Sunbelt Rentals, Inc., Relator 2014 WL 7172474 (Tex. App.-Houston [1st Dist.] 2014) (memorandum opinion)(mandamus action moot where order at issue vacated); In re: Ropal Anderson, 2015 WL 504971 (Tex. App.-San Antonio 2015) (memorandum opinion)(when trial court vacated order at issue that mooted mandamus). For these reasons, Appellees ask this Court to dismiss the appeal.
E. VERIFICATION
10 Appellees attach as Exhibit A an affidavit to this motion to confirm facts that are not yet included in the appellate record, and may not be known to the Court in its official capacity. Tex. R. App. P. 10.2. In addition, this Court could take judicial notice of the trial court's order executed January 30, 2015 and included as attachment to Exhibit A.
-3- F. CONCLUSION
WHEREFORE, PREMISES CONSIDERED, Appellees pray that the Court of Appeals for the Third District of Texas at Austin dismiss this appeal because there is no longer an issue in controversy, Appellees further pray the Court extend the deadline to file a brief in the unlikely event this Motion is denied until 30 days after the Court rules on this Motion, and further pray for further relief that they may be justly entitled to at law or in equity.
Respectfully submitted,
WRIGHT & GREENHILL, P.C. 221 W. 6th Street, Suite 1800 Austin, Texas 78701 512/476-4600 512/476-5382 (Fax) rpringle@w-g.com hcou ghl in@ w- g .com mthomQson@w-g.com
Is/ Mike Thompson, Jr.
Brantley Ross Pringle, Jr. State Bar No. 16330001 Heidi A. Coughlin State Bar No. 24059615 Mike Thompson, Jr. State Bar No. 19898200
ATTORNEYS FOR APPELLEES PORT OF CALL HOMEOWNERS ASSOCIATION, RANDOLPH HARIG, PHILLIP JACOBS, JOHN ROSS BUCHHOLTZ AND RICHARD PAT MCELROY
-4- CERTIFICATE OF CONFERENCE
Appellant would not agree to this Motion.
NOTICE OF ELECTRONIC FILING
The undersigned counsel certifies that on 11th day of February, 2015, he has electronically filed the foregoing document with the Third Court of Appeals Austin, Texas, Clerk's Office using the electronic filing system through ProDoc efiling2 and counsel will send notification of such filing to Mr. David Junkin and Mr. L. Hayes Fuller, III.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing has been served on the following via facsimile or certified mail, return receipt requested, in accordance with the Texas Rules of Civil Procedure, on this 11 1h day of February, 2015.
David Junkin LAW OFFICE OF DAVID JUNKIN P. 0. Box 2910 Wimberley, TX 78676
L. Hayes Fuller, III NAMAN HOWELL SMITH & LEE, P.L.L.C 400 Austin A venue, Suite 800 P. 0. Box 1470 Waco, TX 75703-1470
/s/ Mike Thompson, Jr. Brantley Ross Pringle, Jr. Heidi Coughlin Mike Thompson, Jr.
-5- EXHIBIT A CAUSE NO. 03-14-00725-CV
IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS
GEORGE GREEN Appellant
VS.
PORT OF CALL HOMEOWNERS ASSOCIATION, RANDOLPH HARIG, PHILLIP JACOBS, JOHN ROSS BUCHHOLTZ AND RICHARD PAT MCELROY
Appellees
On Appeal from the 33Ro DISTRICT COURT of LLANO COUNTY, TEXAS
AFFIDAVIT OF MIKE THOMPSON, .JR.
BEFORE ME, the undersigned notary, personally appeared Mike
Thompson, Jr., the Affiant, a person whose identity is known to me. After I
administered an oath, Affiant testified as follows:
1. "My name is Mike Thompson, Jr. I am over 18 years of age, of sound mind, and capable of making this Affidavit. The facts stated in this Affidavit are within my personal knowledge and are true and correct.
2. "On January 30, 2015, the parties had a hearing before the District Court to evaluate and reconsider the court order of October 21, 2014, that is the subject of the appeal. 3. "As a result of that hearing, the District Court executed and issued an order vacating his earlier order of October 21, 2014. A copy of that order is attached as Attachment 1 to this Affidavit."
FURTHER AFFIANT SA YETH NOT.
SIGNED this y/ day of __ <=~ ----l---+--' 2015.
~ Mike Thompson, Jr. Affiant
STATEOFTEXAS § § COUNTY OF TRAVIS §
BEFORE ME, the undersigned authority, on this day personally appeared Mike Thompson, Jr. who being first duly sworn, stated that all facts contained in the foregoing Affidavit are true and correct to the best of his knowledge and belief.
SUBSCRIBED AND SWORN TO this,_._._-=-- day of February, 2015.
Notary Public, State of Texas
-2- ATTACHMENT 1
'· CAUSE NO. 18314
GEORGE GREEN § IN THE DISTRICT COURT OF § v. § § PORT OF CALL HOMEOWNERS § LLANO COUNTY, TEXAS ASSOCIATION, RANDOLPH HARIG, § NANCY CAROTHERS, AND PHILIP § JACOBS, JOHN ROSS BUCHHOLTZ, § AND RICHARD PAT MCELROY § 33RD JUDICIAL DISTRICf
ORDER
CAME ON to be considered the motion of Defendants to vacate the Order of October 21,
2014 in the above-captioned cause. The Court having considered the motion, the evidence and
arguments of counsel. hereby finds that the motion should be and is hereby GRANTED.
It is hereby ORDERED that the Court's Order dated October 21. 2014 in this matter is
YACATED without prejudice to seek the relief granted in the October 21, 2014 Order if George
Green acquires standing to prosecute this lawsuit.
SIGNED this ?uf"' of ...-5;w/ '2015.
JOYCE GILLOW ClERK DISTRICT COURT, llANO COUNTY, TEXAS FILED FEB 0 5 2015 AT q\·}3 O'ClOCK_A_M BY ct-:-::-:: DEPUTY