Justine Ingels v. Diane R. Earnest

Opinion

ACCEPTED 05-15-01512-cv

FIFTH COURT OF APPEALS

Appellate Docket Number: 05-15-0 1512-CV DALLAS, TEXAS 12/18/2015 11:58:04 AM

LISA MATZ

Appellate Case Style: Justine Ingels CLERK

Vs.

Diane R. Earnest

Companion Case No.:

FILED IN

5th COURT OF APPEALS

DALLAS, TEXAS

12/18/2015 11:58:04 AM

Amended/corrected statement: DOCKETING STATEMENT (Civil) LISA MATZ Clerk

Appellate Court:

(to be filed in the court of appeals upon perfection of appeal under TRAP 32)

I. Appellant II. Appellant Attorney(s) [81 Person D Organization (choose one) [81 Lead Attorney First Name: Ben

First Name: Justine Middle Name: Middle Name: Last Name: Taylor

Last Name: Ingels Suffix:

Suffix: Law Firm Name: Ted B. Lyon & Associates, P.C.

ProSe: 0 Address l: 18601 LBJ Freeway, Suite 525 Address 2:

City: Mesquite State: Texas Zip+4: 75150-5632 Telephone: (972) 279-6571 ext. Fax: (972) 279-3021 Email: btaylor@tedlyon.com

SBN: 19684500

I. Appellant II. Appellant Attorney(s) IZJ Person D Organization (choose one) IZJ Lead Attorney First Name: Richard First Name: Justine Middle Name: A. Middle Name: Last Name: Mann

Last Name: Ingels Suffix:

Suffix: Law Firm Name: Ted B. Lyon & Associates, P.C.

ProSe: 0 Address 1: 18601 LBJ Freeway, Suite 525 Address 2:

Page 1 of 8

City: Mesquite State: Texas Zip+4: 75150-5632 Telephone: (972) 279-6571 ext. Fax: (972) 279-3021 Email: rmann@tedlyon.com SBN: 24079640

I. Appellant II. Appellant Attorney(s) ~ Person D Organization (choose one) ~ Lead Attorney First Name: Ted

First Name: Justine Middle Name: B. Middle Name: Last Name: Lyon

Last Name: Ingels Suffix: Jr.

Suffix: Law Firm Name: Ted B. Lyon & Associates, P.C.

ProSe: 0 Address 1: 18601 LBJ Freeway, Suite 525 Address 2: City: Mesquite State: Texas Zip+4: 75150-5632 Telephone: (972) 279-6571 ext. Fax: (972) 279-3021 Email: tblyon@tedlyon.com

SBN: 12741500

III. Appellee IV. Appellee Attorney(s) ~ Person D Organization (choose one) IZJ Lead Attorney First Name: Gregory First Name: Diane Middle Name: R. Middle Name: R Last Name: Ave Last Name: Earnest Suffix: Suffix: Law Firm Name: Walters, Balido & Crain, L.L.P. ProSe: 0 Address 1: Meadow Park Tower

Address 2: 10440 North Central Expressway, 15th Floor City: Dallas State: Texas Zip+4: 75231 Telephone: (214) 749-4805 ext. Fax: (214) 760-1670 Email: greg.ave@wbclawfmn.com SBN: 01448900

V. Perfection Of Appeal And Jurisdiction

Nature of Case (Subject matter or type of case): Personal Injury

Date order or judgment signed: September II, 2015 Type of judgment: Jury Trial Date notice of appeal filed in trial court: December I 0, 20 I5 If mailed to the trial court clerk, also give the date mailed:

Interlocutory appeal of appealable order: DYes IZJ No If yes, please specifY statutory or other basis on which interlocutory order is appealable (See TRAP 28):

Accelerated appeal (See TRAP 28): DYes IZJ No If yes, please specifY statutory or other basis on which appeal is accelerated:

Parental Termination or Child Protection? (See TRAP 28.4): DYes ~No

Permissive? (See TRAP 28.3): DYes IZJ No If yes, please specifY statutory or other basis for such status:

Agreed? (See TRAP 28.2): DYes IZJ No If yes, please specifY statutory or other basis for such status:

Appeal should receive precedence, preference, or priority under statute or rule: DYes IZJ No If yes, please specifY statutory or other basis for such status:

Does this case involve an amount under $100,000? D Yes IZJNo Judgment or order disposes of all parties and issues: IZJ Yes DNo Appeal from fmal judgment: IZJ Yes D No Does the appeal involve the constitutionality or the validity of a statute, rule, or ordinance? D Yes IZJNo

VI. Actions Extending Time To Perfect Appeal

Motion for New Trial: IZJYes DNo If yes, date filed: October 8, 2015 Motion to ModifY Judgment: DYes IZJ No Ifyes, date filed: Request for Findings of Fact DYes 1Zl No Ifyes, date filed: and Conclusions of Law:

DYes IZJ No Ifyes, date filed:

Motion to Reinstate: Motion under TRCP 306a:

DYes IZJ No If yes, date filed:

Other: DYes IZJ No If other, please specifY:

VII. lndigency Of Party: (Attach file-stamped copy of affidavit, and extension motion if filed.)

Affidavit filed in trial court: DYes IZJ No If yes, date filed:

Contest filed in trial court: DYes D No If yes, date filed:

Date ruling on contest due:

Ruling on contest: D Sustained D Overruled Date ofruling:

Vlll. Bankruptcy

Has any party to the court's judgment filed for protection in bankruptcy which might affect this appeal? DYes IZ] No If yes, please attach a copy of the petition.

Date bankruptcy filed: Bankruptcy Case Number:

IX. Trial Court And Record

Court: County Court at Law No. 1 Clerk's Record: County: Dallas County Trial Court Clerk: D District IZJ County Trial Court Docket Number (Cause No.): CC-13-05584-A Was clerk's record requested? IZ] Yes 0 No

If yes, date requested: December 9, 2015 Trial Judge (who tried or disposed of case): If no, date it will be requested: First Name: Hon. D'Metria Were payment arrangements made with clerk? Middle Name: IZJYes 0No 0Indigent Last Name: Benson (Note: No request required under TRAP 34.5(a),(b))

Suffix: Address 1: 600 Commerce Street Address 2: 5th Floor West Tower City: Dallas State: Texas Zip+ 4: 75202 Telephone: (214) 653-7556 ext. Fax: Email:

Reporter's or Recorder's Record:

Is there a reporter's record? IZ]Yes 0 No Was reporter's record requested? IZ]Yes 0No

Was there a reporter's record electronically recorded? IZJ Yes D No Ifyes, date requested: December 9, 2015

If no, date it will be requested: Were payment arrangements made with the court reporter/court recorder? IZ]Yes 0 No Oindigent

IZJ Court Reporter 0 Court Recorder D Official D Substitute

First Name: Cathye Middle Name: Last Name: Moreno Suffix: Address 1: 600 Commerce Street Address 2: City: Dallas State: Texas Zip+ 4: 75202 Telephone: (214) 653-7496 ext. Fax: Email:

X. Supersedeas Bond Supersedeas bond filed: DYes IZJ No If yes, date filed:

Will file : 0 Yes IZJ No

XI. Extraordinary Relief

Will you request extraordinary relief (e.g. temporary or ancillary relief) from this Court? 0 Yes IZJ 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, 1Oth, 11th, 12th, 13th, or 14th Court of Appeal) Should this appeal be referred to mediation?

0 Yes IZJ No

Ifno, please specify: Has the case been through an ADR procedure? IZJYes D No If yes, who was the mediator? What type of ADR procedure? At what stage did the case go through ADR? IZJ Pre-Trial 0 Post-Trial 0 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? Trial Summary of relief granted, including amount of money judgment, and if any, damages awarded.

If money judgment, what was the amount? Actual damages: $0.00 Punitive (or similar) damages: $0.00

Page 5 of 8

Attorney's fees (trial): $0.00 Attorney's fees (appellate): $0.00 Other: If other, please specify:

Will you challenge this Court's jurisdiction? DYes ~No ----------------------------------

Does judgment have language that one or more parties "take nothing"? ~Yes D No Does judgment have a Mother Hubbard clause? DYes ~ No Other basis for finality? Rate the complexity of the case (use 1 for least and 5 for most complex): ~ l D 2 D 3 D 4 D 5 Please make my answer to the preceding questions known to other parties in this case. ~Yes D No Can the parties agree on an appellate mediator? DYes ~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: Richard Mann

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.

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? D 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? DYes ~ 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 oflndigency 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? DYes D 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 fmancial circumstances to the Pro Bono Committee? DYes ~ No lfyes, please attach an Affidavit oflndigency 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 prose party) Date: December 18,2015

Printed Name: Richard Mann State Bar No.: 24079640

Electronic Signature: Richard Mann (Optional)

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 18,2015

Signature of counsel (or prose party) Electronic Signature: Richard Mann (Optional)

State Bar No.: 24079640 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 18, 2015 Manner Served: eServed

First Name: Gregory

Middle Name: R Last Name: Ave Suffix: Law Firm Name: Walter, Balido & Crain, LLP

Address 1: 10440 North Central Expressway, 15th Floor Address 2: City: Dallas State Texas Zip+4: 75231 Telephone: (214) 749-4805 ext. Fax: (214) 760-1670 Email: greg.ave@wbclawfirm.com If Attorney, Representing Party's Name: Diane Earnest