Jim Silliman v. Luxor Contracting, Inc. D/B/A Luxor Staffing

Opinion

ACCEPTED 225EFJ017357697

Appellate Docket Number: 05-12-01429-CV FIFTH COURT OF APPEALS DALLAS, TEXAS

Appellate Case Style: Jim Silliman 13 March 4 P3:00 Lisa Matz

Vs. CLERK Luxor Contracting, Inc., d/b/a Luxor Staffing

Companion Case No.: FILED IN 5th COURT OF APPEALS

DALLAS, TEXAS

3/4/2013 3:00:14 PM

LISA MATZ

Amended/corrected statement: x DOCKETING STATEMENT (Civil) Clerk Appellate Court:5th Court of Appeals (to be filed in the court of appeals upon perfection of appeal under TRAP 32)

I Appellant r 4t ' r 'Appellant AttorneY )1. ( ,

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0 Person fl Organization (choose one) CI Lead Attorney First Name: Norvin First Name: Jim Middle Name: Reed Middle Name: Last Name: Silliman Last Name: Silliman Suffix: Suffix: Law Firm Name: Faegre, Baker & Daniels, LLP

Pro Se: 0 Address 1: 111 E. Wayne Street Address 2: Suite 800 City: Fort Wayne State: Indiana Zip+4: 46802 Telephone: (260) 460-1625 ext. Fax: (260) 460-1700 Email: Reed.Silliman@faegrebd.com SBN: 330 02

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1 Xppellint4 IL Appellaiit- A orney(s) , —

'I Person Organization (choose one) Lead Attorney First Name: Scott First Name: Jim Middle Name: Patrick Middle Name: Last Name: Stolley Last Name: Silliman Suffix: Suffix: Law Firm Name:Thompson & Knight LLP Pro Se: 0 Address 1: 1722 Routh Street Address 2: Suite 1500

City: Dallas State: Texas Zip+4: 75201 Telephone: (214) 969-1700 ext. Fax: (214) 880-3287 Email: scott.stolley@tklaw.com SBN: 19284350

III: :,'Xi$elle-e 'IV.:AppelleeAttorneY(s , l • i, . ''. 441,-, ./ •

fl Person 0 Organization (choose one) 0 Lead Attorney Organization Name:Luxor Contracting, Inc., d/b/a Luxor Staffing First Name: Kevin First Name: Middle Name: T. Middle Name: Last Name: Schutte Last Name: Suffix: Suffix: Law Firm Name: Bracewell & Guiliani LLP Pro Se: 0 Address 1: 1445 Ross Avenue Address 2: Suite 3800 City: Dallas State: Texas Zip+4: 75202-2724 Telephone: (214) 758-1000 ext. Fax: (214) 758-1010 Email: kevin.schutte@bgllp.com SBN: 24033050

'tf •,r •III.,Appellee e . IV.' Appellee Attorney( Person 0 Organization (choose one) • Lead Attorney Organization Name: Luxor Contracting, Inc., d/b/a Luxor Staffing First Name: Lauren First Name: Middle Name: J. Middle Name: Last Name: Brown Last Name: Suffix: Suffix: Law Firm Name: Bracewell & Guiliani LLP Pro Se: 0 Address 1: 1445 Ross Avenue Address 2: Suite 3800 City: Dallas State: Texas Zip+4: 75202-2724 Telephone: (214) 758-1000 ext. Fax: (214) 758-1010 Email: lauren.brown@bgllp.com SBN: 24069430

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III Apllee -4 IV. ;AppeIlee -Attorney

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Person 0 Organization (choose one) Lead Attorney Organization Name: Luxor Contracting, Inc., d/b/a Luxor Staffing First Name: Tricia First Name: Middle Name: R

Middle Name: Last Name: DeLeon Last Name: Suffix: Suffix: Law Firm Name: Bracewell & Guiliani LLP Pro Se: Address 1: 1445 Ross Avenue Address 2: Suite 3800 City: Dalas State: Texas Zip+4: 75202-2724 Telephone: (214) 758-1000 ext. Fax: (214) 758-1010 Email: tricia.deleon@bgllp.com SBN: 24005885

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V.;.Perfectioii Of Appeal Aild Jurisdiction-

Nature of Case (Subject matter or type of case): Other Date order or judgment signed: July 19, 2012 Type of judgment: Jury Trial Date notice of appeal filed in trial court: October 17, 2012 If mailed to the trial court clerk, also give the date mailed: Interlocutory appeal of appealable order: fl Yes ""1 No If yes, please specify statutory or other basis on which interlocutory order is appealable (See TRAP 28):

Accelerated appeal (See TRAP 28): • Yes CI 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): 0 Yes C1 No If yes, please specify statutory or other basis for such status:

Appeal should receive precedence, preference, or priority under statute or rule: El Yes ii4 No If yes, please specify statutory or other basis for such status:

Does this case involve an amount under $100,000? fl Yes 0.1 No Judgment or order disposes of all parties and issues: CA Yes ONo Appeal from final judgment: 1 Yes • No Does the appeal involve the constitutionality or the validity of a statute, rule, or ordinance? Yes ■,1 No lt , fls-

.. A , s Pate 1 1 I le To Perfect Appeal

Motion for New Trial: a Yes No If yes, date filed: August 20, 2012 Motion to Modify Judgment: il1 Yes • No If yes, date filed: August 20, 2012 Request for Findings of Fact vl Yes No If yes, date filed: August 8, 2012 and Conclusions of Law:

DYes >2 No If yes, date filed:

Motion to Reinstate: Motion under TRCP 306a: fl Yes 2:1 No If yes, date filed:

Other: II Yes No If other, please specify:

yu. Indigene Party: (A t of affidavi niotion if ili.d) I

Affidavit filed in trial court: 0 Yes i'l No If yes, date filed:

Contest filed in trial court: flYes C1 No If yes, date filed:

Date ruling on contest due:

Ruling on contest: • Sustained • Overruled Date of ruling:

Page 4 of 1 1

Will: anicuptcy- , ,4. q ■ ro Has any party to the court's judgment filed for protection in bankruptcy which might affect this appeal? EYes F. :4 No If yes, please attach a copy of the petition.

Date bankruptcy filed: Bankruptcy Case Number:

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r < IX. • Trial Court And Record .4 ., , . ,

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Court: 134th Judicial District Court Clerk's Record: County: Dallas Trial Court Clerk: I District fl County Trial Court Docket Number (Cause No.): DC10 01795 - Was clerk's record requested? Yes • No If yes, date requested: October 7, 2012 Trial Judge (who tried or disposed of case): If no, date it will be requested: First Name: Dale Were payment arrangements made with clerk? Middle Name: 1l Yes ENo flindigent Last Name: Tillery (Note: No request required under TRAP 34.5(a),(b))

Suffix: Appellant has already paid for the clerk's Address 1: George L. Allen, Sr. Courts Bldg. record, which has been completed and filed.

Address 2 : 600 Commerce Street, Suite 650 City: Dallas State: Texas Zip + 4: 75202 Telephone: (214) 653-6995 ext. Fax: (214) 653-6988 Email: fly@dallascourts.org

Reporter's or Recorder's Record: Is there a reporter's record? 1I Yes • No Was reporter's record requested? C1 Yes fl No

Was there a reporter's record electronically recorded? fl Yes el No If yes, date requested: October 17, 2012

If no, date it will be requested: Were payment arrangements made with the court reporter/court recorder? CI Yes fl No • Indigent Appellant has paid a $4,000 deposit to the court reporter. The court reporter has said she will bill Appellant for the balance when she completes the transcript. Appellant has agreed to this arrangement and will pay the balance when it is billed by the court reporter.

1 Court Reporter • Court Recorder 1 Official D Substitute

First Name: Vielica Middle Name: Last Name: Dlobbins Suffix: Address 1: George L. Allen, Sr. Bldg. Address 2: 600 Commerce Street, Suite 650 City: Dallas State: Texas Zip + 4: 75202 Telephone: (214) 653-7239 ext. Fax: (214) 653-6988 Email: vielica@sbcglobal.net ., _ 4Supersecleas" Bond ., k.., Supersedeas bond filed:fl Yes 1 No If yes, date filed:

Will file: Co Yes • No Appellant is working on filing a bond or an alternative to a bond.

.P f titra aty.Relief ,-.,.., Will you request extraordinary relief (e.g. temporary or ancillary relief) from this Court? flYesei'l No If yes, briefly state the basis for your request:

XTI, lAlterriatii,epi§p'ute . Oth,11 iZt 40 ... , . . ResMution/Mediation'

.. ,, . . . C ection if liii4iii I • th, 5th :-.

riT4th CiiiiIrt-OfhAppeal) 4 '

Should this appeal be referred to mediation? ., 4 Yes • No

If no, please specify: Has the case been through an ADR procedure? EYes "4 No If yes, who was the mediator? What type of ADR procedure? At what stage did the case go through ADR? • Pre-Trial 111 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): (I) Sufficiency of the evidence to support liability; (2) Casteel error in the charge; (3) error in changing the ruling about the transfer date.

How was the case disposed of? Trial Summary of relief granted, including amount of money judgment, and if any, damages awarded. If money judgment, what was the amount? Actual damages: $216,597.00 Punitive (or similar) damages: $0.00

Attorney's fees (trial): $185,578.00 Attorney's fees (appellate): $110,000.00 Other: If other, please specify:

Will you challenge this Court's jurisdiction? D Yes el No Does judgment have language that one or more parties "take nothing"? Yes J No Does judgment have a Mother Hubbard clause? ■„ Yes p No Other basis for finality? Rate the complexity of the case (use 1 for least and 5 for most complex): p 1 fl 2 3 4D5 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? fl Yes ■14 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: none Name of person filing out mediation section of docketing statement: Scott P. Stolley

I; '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.

XIV Cbitiligke section if filitiOrt the 1st, , 2na, 3dSi3th ot-'14th Crt 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? El Yes i4 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? CI Yes p 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 El No

These guidelines can be found in the Pro Bono Program Pamphlet as well as on the internet at http://aspe.hhs.govipoverty/06povertv.shtml.

Are you willing to disclose your financial circumstances to the Pro Bono Committee? CI Yes p 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).

Signature of counsel (or pro se party) Date: March 4, 2013

Printed Name: Scott P. Stolley State Bar No.: 19284350

Electronic Signature: /s/ Scott P. Stolley (Optional)

ificate:!6f8ervke

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 March 4, 2013

Signature of counsel (or pro se party) Electronic Signature: /s/ Scott P. Stolley (Optional)

State Bar No.: 19284350

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: March 4, 2013 Manner Served: Email

First Name: Kevin

Middle Name: T. Last Name: Schutte Suffix: Law Firm Name:Bracewell & Guiliani LLP Address 1: 1445 Ross Avenue Address 2: Suite 3800 City: Dallas State Texas Zip+4: 75202-2724 Telephone: (214) 758-1000 ext. Fax: (214) 758-1010 Email: kevin.schutte®bgllp.com If Attorney, Representing Party's Name: Luxor Contracting, Inc., d/b/a Luxor Staffing

Ver. 1.0 7/12

Please enter the following for each person served:

Date Served: March 4, 2013 Manner Served: Email

First Name: Lauren

Middle Name: J. Last Name: Brown Suffix: Law Firm Name:Bracewell & Guiliani LLP Address 1: 1445 Ross Avenue Address 2: Suite 3800 City: Dallas State Texas Zip+4: 75202-2724 Telephone: (214) 758-1000 ext. Fax: (214) 758-1010 Email: lauren.brown@bgllp.com If Attorney, Representing Party's Name: Luxor Contracting, Inc., d/b/a Luxor Staffing

Ver. 1.0 7/12

Please enter the following for each person served:

Page 10 ofll

Date Served: March 4, 2013 Manner Served: Email

First Name: Tricia

Middle Name: R. Last Name: DeLeon Suffix: Law Firm Name:Bracewell & Guiliani LLP Address 1: 1445 Ross Avenue Address 2: Suite 3800 City: Dallas State Texas Zip+4: 75202-2724 Telephone: (214) 758-1000 ext. Fax: (214) 758-1010 Email: tricia.deleon@bglIp.com If Attorney, Representing Party's Name: Luxor Contracting, Inc., d/b/a Luxor Staffing

Ver. 1.0 7/12

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