Paul L. Foster, William Eugene Powell, R. Steven Hicks, Nash M. Horne, Robert L. Stillwell, Alex M. Cranberg, Wallace L, Hall, Jr., Brenda Pejovich, Ernest Aliseda, and Jeffrey D. Hildebrand, in Their Official Capacities as Regents v. American Society of Landscape Architects, Inc. and the American Society of Landscape Architects' Library and Education Advocacy Fund, Inc., Individually and on Behalf of Sustainable Sites Initiative, an Unincorporated Nonprofit Association

• Court: Court of Appeals of Texas
• Decided: May 6, 2015
• Docket: 03-14-00097-CV
• Status: Published

Opinion

ACCEPTED 03-14-00097-CV 5180550 THIRD COURT OF APPEALS AUSTIN, TEXAS 5/6/2015 3:53:50 PM JEFFREY D. KYLE CLERK No. 03-14-00097-CV

In the FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS Court of Appeals for the 5/6/2015 3:53:50 PM Third Judicial District at Austin, Texas JEFFREY D. KYLE Clerk

PAUL L. FOSTER, WILLIAM EUGENE POWELL, R. STEVEN HICKS, NASH M. HORNE, ROBERT L. STILLWELL, ALEX M. CRANBERG, WALLACE L. HALL, JR., BRENDA PEJOVICH, ERNEST ALISEDA, AND JEFFREY D. HILDEBRAND, IN THEIR OFFICIAL CAPACITIES AS REGENTS OF THE UNIVERSITY; AND CRAIG WESTEMEIER, IN HIS OFFICIAL CAPACITY AS ASSOCIATE ATHLETICS DIRECTOR Appellants, v.

AMERICAN SOCIETY OF LANDSCAPE ARCHITECTS, INC., AND THE AMERICAN SOCIETY OF LANDSCAPE ARCHITECTS’ LIBRARY AND EDUCATION ADVOCACY FUND, INC., INDIVIDUALLY AND ON BEHALF OF SUSTAINABLE SITES INITIATIVE, AN UNINCORPORATED NONPROFIT ASSOCIATION, Appellees.

On Appeal from the 98th Judicial District Court of Travis County, Texas

SUGGESTION OF MOOTNESS

TO THE HONORABLE THIRD COURT OF APPEALS:

This dispute centers on the University’s actions with regard to its ownership

of intellectual property related to the “Sustainable Sites Initiative.” See Appellant’s

Br. at 2-7. Following a dispute as to the proper procedural framework for obtaining federal trademark protection for the program, the University filed its own trademark

application. See Appellant’s Br. at 9.

The University is now transferring its interest in the program to a third party,

Green Business Certification, Inc., which will perform oversight and certification

programs. Pursuant to that agreement, the University has officially assigned its

ownership interest in any trademark related to the Sustainable Sites Initiative to

Green Business Industries. The affidavit of Lee Smith explaining this new third-

party agreement, to which is attached a copy of the executed assignment, is attached

to this filing. See TEX. GOV’T CODE § 22.220(C) (providing for consideration of

affidavit evidence related to jurisdiction).

A case becomes moot on appeal when “the parties lack a legally cognizable

interest case in the outcome.” Heckman v. Williamson County, 369 S.W.3d 137, 162

(Tex. 2012). The relief requested in the live petition is all related to allegations

regarding the University’s ownership of the intellectual property. CR.27 (seeking

declaratory judgment that University is not the “one true owner” of the trademarks,

relief precluding University from applying for trademark protection). Because the

University has affirmatively disclaimed any ownership interest in the trademarks by

assigning its ownership interests to a third party, ASLA no longer has any legally

cognizable interest in a lawsuit that seeks to establish that the University either does

2 not own the trademarks or is not the exclusive owner thereof. ASLA’s claims are

now moot.

The appropriate remedy when a case becomes moot on appeal is to vacate any

underlying orders and dismiss the cause. TEX. R. APP. P. 43.2(e); e.g., Speer v.

Presbyterian Children’s Home and Serv. Agency, 847 S.W.2d 227, 229 (Tex. 1993)

(requiring vacatur and dismissal of underlying orders when case becomes moot);

Tex. State Bd. of Veterinary Med. Exam’rs v. Giggleman, 408 S.W.3d 696, 704 (Tex.

App.—Austin 2013, no pet.) (applying Speer); see also Freeman v. Burrows, 171

S.W.2d 863, 863 (Tex. 1943) (“When a cause becomes moot on appeal, all previous

orders and judgments should be set aside and the cause, not merely the appeal,

dismissed.”).

This case is, substantively, about the University’s ownership of the

intellectual property. The University has now disclaimed any ownership of the

intellectual property by assigning it to a third party. Accordingly, the case has

become moot on appeal and the Court should vacate any underlying orders and

dismiss the cause.

3 Respectfully submitted,

KEN PAXTON Attorney General of Texas

CHARLES E. ROY First Assistant Attorney General

SCOTT A. KELLER Solicitor General

/s/ Kristofer S. Monson KRISTOFER S. MONSON Assistant Solicitor General State Bar No. 24037129

OFFICE OF THE TEXAS ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1700 Fax: (512) 474-2697 kristofer.monson@texasattorneygeneral.gov

Counsel for Appellants

4 CERTIFICATE OF SERVICE

On May 6, 2015, this document was served via File&ServeXpress on:

Kurt Kuhn Kuhn Hobbs PLLC 3307 Northland Drive, Suite 210 Austin, Texas 78731-4946 kurt@kuhnhobbs.com

/s/ Kristofer S. Monson KRISTOFER S. MONSON