Kelly Gavin v. Pamela S. Froeschner and Robert S. Evans

• Court: Court of Appeals of Texas
• Decided: April 13, 2015
• Docket: 01-15-00223-CV
• Status: Published

Opinion

ACCEPTED 01-15-00223-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 4/13/2015 11:44:24 AM CHRISTOPHER PRINE CLERK

IN THE FIRST COURT OF APPEALS

HOUSTON, TEXAS FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS KELLY GAVIN, § 4/13/2015 11:44:24 AM § CHRISTOPHER A. PRINE Clerk Appellant, § No. 01-15-00223-CV § v. § § PAMELA S. FROESCHNER and § ROBERT S. EVANS § § Appellees. §

Appellees’ Objection to Mediation

TO THE HONORABLE FIRST COURT OF APPEALS:

Appellees Froeschner and Evans, in compliance with the Court’s mediation

order, file their objection to the referral to mediation.

1. By Order entered April 3, 2015, the Court ordered the parties to mediation

without a stay of briefing. The Court’s order provides the parties ten days to object

to the referral to mediation. Appellees timely file their objection.

2. This is an appeal from a summary judgment in favor of two members of the

board of directors for a non-profit organization, AIDS Coalition of Coastal Texas,

Inc. (“ACCT”) and for the Galveston AIDS Foundation, Inc., another non-profit

that worked closely with ACCT. Appellant is a former at-will employee of the non-

profit ACCT who voluntarily resigned from her employment. Thereafter she claimed she was the victim of intentional infliction of emotion distress and slander,

and that there had been interference with her economic and contractual relations.

3. Appellees Froeschner and Evans, who serve on the board of directors of a

non-profit organization, are immune from liability under the Texas Non-Profit

Corporation Act, Tex. Civ. Prac. & Rem. Code Ann. Chapter 84. Their immunity

was one of the grounds on which they sought summary judgment.

4. Appellees object to the referral to mediation because they believe mediation

will not be of assistance in resolving this litigation. Appellees and others were

critical of several aspects of appellant’s job performance; she thereafter filed a

grievance in December 2010 that was fully investigated by the non-profit’s

Grievance Committee. The committee’s report contained no finding of

wrongdoing by appellees, and no finding of any merit to appellant’s claims. The

February 2011 report of the committee encouraged the parties to resolve hurt

feelings and misunderstandings. Appellant resigned employment more than one

year later on May 1, 2012. She filed suit in 2013 seeking in excess of $100,000 in

damages.

5. ACCT is a non-profit corporation that provides community-based education

and services for people living with HIV/AIDS in Galveston, Brazoria, and

Matagorda counties. Its clients are the general public and people that are HIV-

-2- positive. Appellees Froeschner and Evans are unpaid volunteer board members

who have immunity from suit. For these reasons, they object to mediation.

Mediation will be an additional expense to the parties and will not result in any

resolution of appellant’s claims.

6. Appellees requests the Court vacate its Order of referral of April 3, 2015, and

allow the appeal to proceed on the existing briefing schedule. Appellees further

request the Court grant any other relief it finds would be appropriate.

Respectfully submitted,

MILLS SHIRLEY L.L.P.

By: /s/ George W. Vie III George W. Vie III State Bar No. 20579310 2228 Mechanic Street, Suite 400 Galveston, Texas 77550 (713) 571-4232 Fax (713) 893-6095 gvie@millsshirley.com

Attorneys for Appellees

-3- CERTIFICATE OF SERVICE

As required by Tex. R. App. P. 6.3 and 9.5(b), (d), (e), I certify that I have served this document on all other parties – which are listed below – on April 13, 2015, as follows:

Maurice Bresenhan, Jr. Zukowski & Bresenhan & Sinex & Petry, L.L.P. 1177 West Loop South, Suite 1100 Houston, Texas 77027

Attorney representing appellant:

By: □ personal delivery X e-service □ commercial delivery service □ fax

/s/ George W. Vie III George W. Vie III

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