in Re George Green and Garlan Green

Opinion

ACCEPTED 03-14-00725-CV 4598006 THIRD COURT OF APPEALS AUSTIN, TEXAS 3/23/2015 11:48:37 AM JEFFREY D. KYLE CLERK

No. 03-14-00725-CV FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 3/23/2015 11:48:37 AM In the Third Court of Appeals JEFFREY D. KYLE Clerk Austin, Texas

GEORGE GREEN AND GARLAN GREEN (DECEASED), Appellants

v.

PORT OF CALL HOMEOWNERS ASSOCIATION Appellee

APPEAL FROM CAUSE NO. 18314 RD HON. ALLAN GARRETT, PRESIDING

APPELLANTS’ SUPPLEMENTAL RESPONSE TO APPLELLEES’ MOTION TO DISMISS

David Junkin State Bar No. 11058020 Law Office of David Junkin P.O. Box 2910 Wimberley, Texas 78676 512/847-8600 512/847-8604 (fax) david@junkinlawoffice.com Attorney for Appellants TO THE HONORABLE THIRD COURT OF APPEALS:

Appellants, George Green and Garlan Green (now deceased) file this

supplemental response to the Appellee’s Motion to Dismiss Appellant’s Appeal

Because of Mootness (the “Motion to Dismiss”) as follows:

1. On February 22, 2015 the Appellants filed their response to the

Motion to Dismiss and requested additional time to respond based on a

supplemental Reporter’s Record requested by Appellees. In following up on

the Supplemental Reporter’s Record, it appears that Appellees’ cancelled the

request for the Supplemental Record. See Exhibit A. Appellants were not

aware that Appellees canceled their request for a supplemental record.

2. The portions of the Supplemental Reporter’s Record that contain

statements from Appellees’ counsel reflecting the injunctive nature and purpose

of the “Discovery Order,” include, but are not limited to, the following:

MR. JUNKIN: . . . In other words, it says -- this is in the third paragraph down, beginning about in the middle, "Plaintiff's requests, oral or written, for documents addressed in this order or previously produced by Defendants will be viewed as an abuse of discovery and subject to sanctions." . . .

THE COURT: Well, I was proposing taking that paragraph out completely and just putting, "Any violation of this order". Any consternation with that? I mean...

MS. COUGHLIN: The only issue I have with that, Your Honor, is that by removing that paragraph Appellants’ Supplemental Response to Motion to Dismiss - Page 1 entirely, the plaintiff, without his attorney, can continue -- once he gains standing -- sending these letters, "You better give me these documents within three days or else." And that kind of brings us back to where we started in October. So I thought this was middle ground because it says, in Paragraph 2, defendants can ignore your requests, and in Paragraph 3 says if you keep doing it, you can get sanctioned.

. . .

MS. COUGHLIN: And, Your Honor, may I -- I know I'm belaboring it, but we've been here several times, and the reason that I believe your order was as specific as it was, was because the order that you entered in August was a very short order. It was after we had a long hearing. And you had verbally told Mr. Green stop asking, but the order didn't say that. And so then opposing counsel came back when we had a hearing saying you're violating the order and said, "But the order doesn't say it, so we're not allowed -- you know, we're allowed to do it." And so it ends up being a circular argument. If the order doesn't specifically prohibit behavior, then they're going to say they're allowed to do it. And if it does, then it's injunctive in nature and --

Supplemental Reporter’s Record, Page 27, Line 3 through Page 29, Line 16.

3. From the comments above, Appellees’ trial counsel show that the

underlying purpose of the “Discovery Order” is to grant basically the same relief

Appellees’ purport to have gained in the Second Order. The Discovery Order

enjoins requests for documents, including documents available outside of the

discovery process. The Appellees’ request for the Vacating Order and concurrent

Appellants’ Supplemental Response to Motion to Dismiss - Page 2 request for issuance of the “Discovery Order” is an improper attempt to oust this

Court of jurisdiction over the Second Order.

PRAYER

Appellants move that the Appellees’ Motion to Dismiss be denied and

that Appellants be awarded all such other and further relief, including general

relief, to which they might be entitled.

Respectfully submitted,

Law Office of David Junkin

_______________________ David Junkin State Bar No. 11058020 P.O. Box 2910 Wimberley, Texas 78676 512/847-8600 512/847-8604 (fax) david@junkinlawoffice.com

Attorney for Appellants George and Garlan Green

Appellants’ Supplemental Response to Motion to Dismiss - Page 3 CERTIFICATE OF SERVICE

I hereby certify that a copy of this supplemental response was served on the following counsel of record and in the manner indicated on March 23, 2015.

VIA FAX OR AND/OR ESERVE

Brantley Ross Pringle, Jr. Heidi Coughlin Wright & Greenhill, PC 221 West 6th Street, Suite 1800 Austin, TX 78701

VIA FAX AND/OR ESERVE

L. Hayes Fuller, III Naman, Howell, Smith, & Lee, PLLC P.O. Box 1470 Waco, TX 76703-1470

___________________________ David Junkin

Appellants’ Supplemental Response to Motion to Dismiss - Page 4 EXHIBIT A