Kelly Pope Worley and Kevin Pope v. Chrysanthi Avinger

Opinion

ACCEPTED

05-18-00648-CV

05-18-00648-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 6/8/2018 9:38 AM

Appellate Docket Number: LISA MATZ 05-18-00648-CV

CLERK

Appellate Case Style: Kelly Pope Worley and Kevin Pope

VS'

Clirysanthi Avinger

FILED IN

Companion Case No.1 355.00 55.20 1 | 5 5th COURT OF APPEALS DALLAS, TEXAS

6/8/2018 9:38:15 AM

LISA MATZ

Clerk

Amended/corrected statement: DOCKETING STATEMENT (Civil)

Appellate COUHI Fifth Court ofAppcals (to he tiled in the court ofappcnls upon perfection ol‘appca| under TRAP 32)

1. Appellant ll. Appellant Attorney(s)

Person D Organization (choose one) Lead Attorney First Name: Alton First Name: Kelley Middle Name: C, Middle Name: Last Name: T0‘-ld

Last Name: Pope Worley Suffix:

Suffix: Law Firm Name: The Law Firm ofAlton C. Todd Pro Se: 0 Address li 3l2 S, Friendswood Dr.

Please see attached page for second Address 2: Appellant: Kevin Pope

CW? Fricndswood State: Texas Zip+4: 77546 Telephone: 281-992-8633 5“. Fax: 281-648-8633 Email: alton@.actlaw.com

SBN; 20092000

III. Appellee IV. Appellee Attorney(s)

Person E]Organizzition(choose one)

~First

Lend Attorney Name: Grady

First Name: Chrysanthi Middle Name: R_ Middle Name: Last Name: Thompson Last Name: Avingcr Suflix:

Suffix: l~““’ Fl““ N‘““°3 Mcwilliants & Thompson Pro Se: 0 Address |: 27|3 Virginia Pkwy Address 3: Ste. I00 lCily: McKinney State: Texas zip+4; 75071 Telephone: 972-542-1251 ext Fax: 972-562-9881 Emalli grt@m-tlaw.com SBN: 19910975

Page 1 of7

Appellate Docket Number: 05- l 8-00648-CV

Appellate C356 S!)’l€I Kelly Pope Worley and Kevin Pope

VS"

Chrysanlhi Avinger

Companion Case Nc.: 365.oo155_2o15

Amended/corrected statement: DOCKETWG ST/\TEl\/l ENT (ClVll)

Appellale C0urlIFilihCour1 ol‘Appca|s (10 he filed in the eoun ofuppcals upon pcrllrclion ofappcal under TRAI’ 32)

1. Appellant ll. Appellant Attorney(s)

Person I: Organization (choose one) E] Lead Attorney First Name: Alton FirstName: Kevin Middle Name: c, Middle Name: Last Name: Todd Last Name: Pope SulT.\':

Suffix: Law Firm Name: The Law Firm ofAlton C. Todd Pro Se: 0 Add|'CSS 13 312 S. Friendswood Dr.

Address 2:

Ch)" Fricndswood State: Texas Zip+4: 77546 Telephone: 281-992-8633 ext_

Fax: ZSI-648-8633 Email: :1Iton@actlaw.com

SBN: 20092000

III. Appellee IV. Appellee Attorney(s)

El Person |:lOrganizaIion (choose one) D Lead Attorney First Name:

FirstName: Middle Name: Middle Name: ‘Last Name: Last Name: SufF.\':

Suffix: Law Firm Name: Pro Se: 0 Address 1:

Address 2:

City:

Slate: Zip+4: Telephone: ext Fax:

Email:

SBN:

Page 1 of 7

V. Perfection Of Appwl And Jurisdiction Nature of Case (Subject matter or type ofcase):

Date order orjudgment signed: 05/2|/18 Type ofjudgment: summary Judgmgm Date notice ofappeal filed in trial count 05/3l/13

lfmailed to the trial court clerk. also give the date mailed:

interlocutory appeal of appealable order: [:]Yes No lfyes. please specify statutory or other basis on which interlocutory order is appealahle (See TRAP 28):

Accelerated appeal (See TRAP 28): El Y“ N0 lfycs. please specify statutory or other basis on which appeal is accelerated:

Parental Termination or Child Protection‘! (See TRAP 28.4): |jYes No

Permissive‘? (See TRAP 28.3): l:l Yes l:l N0 lfyes. please specify statutory or other basis for such status:

Agreed‘? (See TRAP 28.2): El Yes E] No lfyes. please specify statutory or other basis for such status:

Appeal should receive precedence. preference. or priority under statute or rule: l:l Y95 N0 lfyes, please specify statutory or other basis for such status:

D No

~

Does this case involve an amount under $l00.000'.’ Yes Judgment or order disposes ofall parties and issues: Yes E] No Appeal from final judgment: El Yes [:| No Does the appeal involve the constitutionality or the validity ofa statute. rule, or ordinance? |:| Yes No

VI. Actions Extending Time To Perfect Appeal

Motion for New Trial: I:]Yes No ll‘ yes. date filed:

Motion to Modify Judgment: |jYes Ifyes. date filed:

Request for Findings of Fact and Conclusions of Law:

D Yes it‘ yes. date filed:

I:IYes lfyes, date filed:

Motion to Reinstate:

|:] Yes lfycs. date filed:

Motion under _

TRCP 306a:

Other: l:]Yes No lfother. please specify:

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

Affidavit filed in trial court: [:1 Yes No lfycs. date filed:

Contest filed in trial court: l:lY95 El N0 lf)"3-*1 dale filed?

Date ruling on contest due:

Ruling on contest: I] Sustained E] Overruled Dam ofruung;

Page 2 of7

VIII. pankruptcy

Has any party to the court'sjudgment filed for protection in bankruptcy which might affect this appeal‘? I:IYes No lfyes. please attach a copy of the petition.

Date bankruptcy filed: Bankruptcy Case Number:

IX. Trial Court And Record

Court: 366t.h Judicial District Court Clerk's Record:

County: Collin County Trial Court Clerk: District E] County Trial Court Docket .\'umber (Cause N11,): 366-0I55-2015 Was clerk's record requested‘? Yes E] No lfyes. date requested: ()5/01/13 Trial Judge (who tried or disposed of case): lfno. date it will he requested: First Name: Ray Were payment arrangements made with clerk‘!

Middle Name: ElYes BNO Dlndigent Last Name: wheless (Note: No request required under T R-\l’ 3-l.5(a).(lt)) Suffix:

AMFESS 15 2100 Bloomdale Road Address 2 I Ste. 30146

City: McKinney State: Texas Zip + 4: 75071

Telephone: 972.543.4570 ext.

Fax:

Email? dt.hill@co|lincountytx.gov Court Coordinator. Todd Hill

Reporter's or Recorder's Record:

Is there a reporter's record‘? El Yes No Was reporter's record requested? IjYes El No

Was there a reporter's record electronically recorded? D Yes E] No If yes. date requested:

Ifno. date it will he requested: Were payment arrangements made with the court reporter/court recorder? Dyes D No D Indigem

Page 3 of 7

E Court Reporter El Court Recorder El Official El Substitute

First Name: Middle Name:

Last Name: Suffix:

Address I:

Address 2:

City:

State: Texas Zip + 4: Telephone: ext.

Fax:

Email:

X. Supersedens Bond Supersedeas hond filed:E]Yes E] No lfyes, date filed:

Will file: |:IYes CI No

X]. Extraordinary Relief

Will you request extraordinary re|ief(e.g. temporary or ancillary relief) from this Court‘? |:] Yes E] No lfyes, briefly state the basis for your request:

XII. Altemative Dispute Resolution/Mediation (Complete section if filing in the 1st, 2111!, 4th, 5th. 6th, 8th, 9th. 10th, llth. 12th, 13th, or 146; Court of Appeal)

Should this appeal he referred to mediation?

Yes D No

lfno. please specify:

Has the case been through an ADR procedure‘? |:lYes El No If yes. who was the mediator‘?

What type ofADR procedure? At what stage did the case go through ADR? |:| Pre»Trial |:] Post-Trial C] Other

lfother, please specify:

Type of ease? Appeal from granting summary judgment; ownership of excess funds fi'om constable sale. Give a hriefdescription ofthe issue to be raised on appeal. the relicfsought, 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‘? 5“m"““'Y Judgment Summary ofreliefgranted, including amount of money judgment. and ifany. damages awarded. $61,232.32 lfmoney judgment. what was the amount? Actual damages: $61,232.32 Punitive (or similar) damages:

Page 4 of 7

l

Attorr1ey‘s fees (trial): .4 1;

Attorriey's fees (appellate):

Otheri

If other. please specify:

Will you challenge this Court's jurisdiction?

E] Yes E No

Does judgment have language that one or more parties "take nothing"? E Yes |:| No Does ludgment have a Mother Hubbard clause? [2] Yes BN0 00'" basis f°r finality? Rate 1e complexity of the case (use 1 for least and 5 for most complex): Q 1 El 2 IE 3 I] 4 E] 5

Pleas make my answer to the preceding questions known to other parties in this case. D Yes E No Can e parties agree on an appellate mediator? |:| Yes No If yes, please give name, address, telephone, fax and email address:

Address Telephone Fax Email

Langupges other than English which the mediator should be proficient:

i

in

~ Name of person filing out mediation section of docketing statement:

List pendg 0 past rlated peals efo tis y other Texasappellte oub urt, de nuer, an stye.

Dock Number: Trial Court

SM V"

i

Page 5 of 7

l

' ’

xrv. Pro Bono Program: (Complete section iffiling in the tst, 2nd, 3rd. 5th, or 14th Courts oI‘Appeals) The C urts of Appeals listed above. in conjunction \vith the State Bar ofTexas Appellate Section Pro Bono Committee and local Bar Assoc ations, are conducting a program to place a limited number ofcivil appeals with appellate counsel who will represent the appellant in the appeal before this Coun.

The P Bono Committee is solely responsible for screening and selecting the civil cases for inclusion in the Program based upon a number of discre onary criteria. including the financial means of the appellant or appellee. lfa case is selected by the Committee. and can be matched with a pellate counsel, that counsel will take over representation ofthe appellant or appellee without charging legal fees. More information regard ng this program can be found in the Pro Bono Program Pamphlet available in paper form at the Clerk's Office or on the lntemet at www. x-app.org. lfyour case is selected and matched with a volunteer lawyer, you will receive a letter from the Pro Bono Committee within thirty 0) to forty-five (45) days after submitting this Docketing Statement. Note: ere is no guarantee that ifyou submit your case for possible inclusion in the Pro Bono Program. the Pro Bono Committee will select your c se 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 infonn ation about your case, including parties and background. through selected lntemet sites and Listserv to its pool ofvolunteer appellate attome ys. Do yo want this case to be considered for inclusion in the Pro Bono Program‘! |:| Yes No

Do yo authorize the Pro Bono Committee to contact your counsel of record matter to answer questions the committee may have

E

trial in this regard gthe appeal? lj Y55 N0

Please ote that any such conversations would be maintained as confidential by the Pro Bono Committee and the infonnation used solely for thepu oses ofconsidering the case for inclusion in the Pro Bono Program.

lfyou iave not previously filed an affidavit of lndigency and attached a file-stamped copy of that affidavit, does your income exceed 200% of the U.. Department of Health and Human Services Federal Poverty Guidelines‘?

.

[:| Yes E] No

These ‘guidelines can be found in the Pro Bono Program Pamphlet as well as on the intemet at mp://aspe.hhs.gov/poveny/06poverty.shtmI.

Are yo u willing to disclose your financial circumstances to the Pro Bono Committee? El N0 DY“ If yes. please attach an AlTdavit of lndigency completed and executed by the appellant or appcllee. Sample forms may be found in the Clerk's Office or on the intemet at lug)I//w\vw.tex-apjgg. Your participation in the Pro Bono Program may be conditioned upon your execution of an afli avit under oath as to your financial circumstances.

Give a brief description ofthe issues to be raised on appeal, the relief sought. and the applicable standard of review. if known (without prejud ce to the right to raise additional issues or request additional relief: use a separate attachment. ifnecessary).

rfl/km ltll re

Signatnrewcghnsel (or pro se party) Date: (‘'2'

Printed Name: Alton (_*_ Todd State Bar No.: 20092000

Electra nic Signature: /s/ Alton C. Todd (Or ional)

Page 6 of7

~~

The undersigned counsel certifies that this docketing statement has bee ed on the followg lead counsel fr parties to the trial ~ (fl / Am

~

ll

~

court's order or judgment as follows on

Signature of crfinsel (or pro se party) Electronic Signature:

(Optional)

State Bar No.2

Parser Served Certifi .ate of Service Requirements (TRAP 9.5(e)): A certificate of service must be signed by the person who made the service and must Sta w Z

(l) the date and manner ofservice; (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 :nter the following for each person served:

‘

Date Sen/ed:

Manne Served:

ms: N e:

Middle Name:

Last N Lme: "

’

'

Suffix:

Law F Addre Addre

City:

State

Telephone Fax:

Email:

If Attorney, Representing Party's Name: a

Page 7 of 7

Filed: 5/31/2018 5:16 PM Lynne Finley District Clerk Collin County,Texas By Ashley Clark Deputy Envelope ID: 24982947

CAUSE NO. 366-00155-2015

Eldorado Heights Section II Homeowners IN THE DISTRICT COURT Association, Inc.

V- COLLIN COUNTY, TEXAS coacoaaoatoazmeoa

Allen Pope and Coefiene Pope 366"‘ JUDICIAL DISTRICT

INTERVENORS’ NOTICE OF APPEAL

TO THE HONORABLE JUDGE OF SAID COURT:

Intervenors Kelly Pope Worley and Kevin Pope, by and through their undersigned

counsel, (“Appel1ants"), in conformity with the requisites of Tex. R. App. P. 25.I(d)(l-5), hereby

state their desire to appeal the Order on Intervenor Chrysanthi Avinger’s, (“Appellee”), Motion for

Summary Judgment, dated May 21“, 2018, signed and entered by the Hon. Ray Wheless, presiding

District Judge of the 336"‘ Judicial District Court of Collin County, Texas, sitting in McKinney,

Texas, (“Trial Court”), such Order granting summary judgment in favor of said lntervenor

Chrysanthi Avinger; and, hereby files this their Notice of Appeal, (“NOA”), regarding such.

Pursuant to the Trial Court’s stated Order, the Trial Court’s grant of summary judgment became a

final appealable order. (Id., at 2). Therefore, pursuant to Tex. R. App. P. 26.1, this NOA is timely filed.

Pursuant to Tex. R. App. P. 25.l(d)(4), Kelly Pope Worley and Kevin Pope confirm this

appeal is taken to the Texas Fifth Circuit Court of Appeals, headquartered in Dallas, Texas, having

jurisdiction over civil appeals taken from the Texas State District Courts sitting in McKinney, Collin

County, Texas, among six (6) other Texas counties.

Respectfully submitted,

The Law Firm of Alton C. Todd /\ >

\

.7/V

Alton C. Todd State Bar No. 2()()9200() Seth Mitchell Park State Bar No. 24102325 3 I2 S. Fn'cnds\vood Fricndswood. TX 77546 Ph: 281-‘)<)2-S633 Fax: 28l—(»-'18-8633 a1llun(u)uclluw.coxn scll1(a7z1cllu\v.com

ATTORNEYS FOR lNTERVENORS/ APPELLANTS KELLY POPE-WORLEY and KEVIN \VOR LEY

CERTIFICATE OF SERVICE

I conlinn that this instrument was served on counsel ofrccord pursuant to the Texas Rules of Civil Proccdurc on thc 3 “ day of l\r1uy, 2018.

I

i\/Icwilliums & Thompson Grady R. Thompson 27l3 Virginia Parkway, Stu. I00 McKinney. Texas 75701 Telephone: 972-5424251 Facsimile: 972-562-988 I

gn((1=1n-tluw.cmn

Alton C. Todd

ESQ

Flled:5I18I201811:04 AM Lynne Flnlsy Dlstrlcl Clerk Collln County,Texas By Morgan Hockett Deputy Envelope ID: 24697314

CAUSE NO. 366-00155-2015

ELDORADO HEIGHTS SECTION II * IN THE 366"‘ JUDICIAL HOMEOWNERS ASSOCIATION, INC. Plaintiff

vs. * DISTRICT COURT OF

ALLEN POPE AND COERIENE POPE Defendants * COLLIN COUNTY, TEXAS ORDER GRANTING SUMMARY JUDGMENT On the 22"‘ day of March, 2018, came on to be considered the Motion for

Summary Judgment filed by Intervenor, CHRYSANTHI AVINGER.

The Court after considering the pleadings and the summary judgment evidence,

and reviewing applicable law, is of the opinion that Intervenor’s Motion for

Summary Judgment is well taken and should be GRANTED.

IT IS, ORDERED, ADJUDGED AND DECREED by this Court that the

Motion for Summary Judgment filed by Intervenor, CHRYSANTHI AVINGER, be, and hereby is, GRANTED.

All costs of court expended or incurred in this cause are adjudged against

Intervenors KELLY POPE WORLEY and KEVIN POPE.

Intervenor is allowed such writs, orders of sale and other processes as may be necessary in the enforcement and collection of this judgment.

Order Granting Summary Judgment 1

Ordr Granting Avinger Summary Judgment Page 1 of 2

Any relief requested and not granted herein is denied.

This Order Granting Summary Judgment disposes of any and all claims against

all parties and is a full, final and appealable Judgment.

5/21/2018

SIGNED this day of May, 2018.

gas PRESIDING

Order Granting Summary Judgment 2

Ordr Granting Avinger Summary Judgment Page 2 of 2