Professional Advantage Software Solutions, Inc. v. West Gulf Maritime Asociation Inc.

Opinion

ACCEPTED

01-15-01006-CV

FIRST COURT OF APPEALS

Appellate Docket Number: 01-15-1006-CV HOUSTON, TEXAS 12/1/2015 5:07:44 PM CHRISTOPHER PRINE

Appellate Case Style: Professional Advantage Software Solutions, Inc. CLERK

Vs.

West Gulf Maritime Association, Inc.

Companion Case No.:

FILED IN

1st COURT OF APPEALS

HOUSTON, TEXAS

12/1/2015 5:07:44 PM

Amended/corrected statement: DOCKETING STATEMENT (Civil) CHRISTOPHER A. PRINE Clerk

Appellate Court:1st Court of Appeals (to be filed in the court of appeals upon perfection of appeal under TRAP 32)

I. Appellant II. Appellant Attorney(s)

Person Organization (choose one) Lead Attorney Organization Name: Professional Advantage Software Solutions, First Name: Thomas First Name: Middle Name: C. Middle Name: Last Name: Wright Last Name: Suffix: Suffix: Law Firm Name: Wright & Close, LLP

Pro Se: Address 1: One Riverway Address 2: Suite 2200 City: Houston State: Texas Zip+4: 77056 Telephone: 713-572-4321 ext. Fax: 713-572-4320 Email: wright@wrightclose.com SBN: 22059400

I. Appellant II. Appellant Attorney(s)

Person Organization (choose one) Lead Attorney First Name: Natasha First Name: Middle Name: N. Middle Name: Last Name: Taylor Last Name: Suffix: Suffix: Law Firm Name: Wright & Close, LLP

Pro Se: Address 1: One Riverway Address 2: Suite 2200

City: Houston State: Texas Zip+4: 77056 Telephone: 713-572-4321 ext. Fax: 713-572-4320 Email: taylor@wrightclose.com SBN: 24071117

I. Appellant II. Appellant Attorney(s)

Person Organization (choose one) Lead Attorney First Name: Jamey

First Name: Middle Name: L. Middle Name: Last Name: Voge Last Name: Suffix: Suffix: Law Firm Name: Stuber Cooper Voge PLLC

Pro Se: Address 1: 2600 Network Blvd.

Address 2: Suite 305 City: Frisco State: Texas Zip+4: 75034 Telephone: 214-472-2770 ext. Fax: 214-472-2790 Email: jvoge@scvlaw.net SBN: 24033424

I. Appellant II. Appellant Attorney(s)

Person Organization (choose one) Lead Attorney First Name: Brian

First Name: Middle Name: Middle Name: Last Name: Cooper Last Name: Suffix: Suffix: Law Firm Name: Stuber Cooper Voge PLLC

Pro Se: Address 1: 2600 Network Blvd.

Address 2: Suite 305 City: Frisco State: Texas Zip+4: 75034 Telephone: 214-472-2770 ext. Fax: 214-472-2790 Email: bcooper@scvlaw.net SBN: 24012451

III. Appellee IV. Appellee Attorney(s)

Person Organization (choose one) Lead Attorney Organization Name: West Gulf Maritime Association, Inc. First Name: Timothy

First Name: Middle Name: Middle Name: Last Name: McCloskey Last Name: Suffix: Suffix: Law Firm Name: Carrigan, McCloskey & Roberson LLP Pro Se: Address 1: 945 Heights Blvd.

Address 2: City: Houston State: Texas Zip+4: 77008 Telephone: ext. Fax: Email: tmccloskey@cmrllp.com SBN: 13417650

III. Appellee IV. Appellee Attorney(s)

Person Organization (choose one) Lead Attorney First Name: Blake

First Name: Middle Name: Middle Name: Last Name: Rizzo Last Name: Suffix: Suffix: Law Firm Name: Carrigan, McCloskey & Roberson LLP Pro Se: Address 1: 945 Heights Blvd.

Address 2: City: Houston State: Texas Zip+4: 77008 Telephone: ext. Fax: Email: brizzo@cmrllp.com SBN: 24034073

V. Perfection Of Appeal And Jurisdiction

Nature of Case (Subject matter or type of case): Contract

Date order or judgment signed: November 18, 2015 Type of judgment: Interlocutory Order Date notice of appeal filed in trial court: November 25, 2015 If mailed to the trial court clerk, also give the date mailed: Interlocutory appeal of appealable order: Yes No If yes, please specify statutory or other basis on which interlocutory order is appealable (See TRAP 28): TEX. CIV. PRAC. & REM. CODE ANN. 51.016; TEX. CIV. PRAC. & REM. CODE ANN. § 171.098(a)(1) Accelerated appeal (See TRAP 28): Yes 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): Yes No If yes, please specify statutory or other basis for such status:

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

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

VI. Actions Extending Time To Perfect Appeal

Motion for New Trial: Yes No If yes, date filed: Motion to Modify Judgment: Yes No If yes, date filed: Request for Findings of Fact Yes No If yes, date filed: and Conclusions of Law:

Yes No If yes, date filed:

Motion to Reinstate:

Yes No If yes, date filed:

Motion under TRCP 306a: Other: Yes No If other, please specify:

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

Affidavit filed in trial court: Yes No If yes, date filed:

Contest filed in trial court: Yes No If yes, date filed:

Date ruling on contest due:

Ruling on contest: Sustained Overruled Date of ruling:

VIII. Bankruptcy

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

Date bankruptcy filed: Bankruptcy Case Number:

IX. Trial Court And Record

Court: 151st Judicial District Court Clerk's Record: County: Harris County Trial Court Clerk: District County Trial Court Docket Number (Cause No.): 2012-58827 Was clerk's record requested? Yes No If yes, date requested: November 30, 2015 Trial Judge (who tried or disposed of case): If no, date it will be requested: First Name: Mike Were payment arrangements made with clerk? Middle Name: Yes No Indigent Last Name: Engelhart (Note: No request required under TRAP 34.5(a),(b))

Suffix: Address 1: 201 Caroline Street Address 2 : 11th Floor City: Houston State: Texas Zip + 4: 77002 Telephone: 713-368-6222 ext. Fax: Email:

Reporter's or Recorder's Record:

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

Was there a reporter's record electronically recorded? Yes No If yes, date requested: November 25, 2015

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

Court Reporter Court Recorder Official Substitute

First Name: Carolyn Middle Name: Last Name: Coronado Suffix: Address 1: 201 Caroline Address 2: 11th Floor City: Houston State: Texas Zip + 4: 77002 Telephone: 713-368-6212 ext. Fax: Email:

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

Will file: Yes No

XI. Extraordinary Relief

Will you request extraordinary relief (e.g. temporary or ancillary relief) from this Court? Yes No If yes, briefly state the basis for your request: Motion for stay of trial proceedings

XII. Alternative Dispute Resolution/Mediation (Complete section if filing in the 1st, 2nd, 4th, 5th, 6th, 8th, 9th, 10th, 11th, 12th, 13th, or 14th Court of Appeal) Should this appeal be referred to mediation?

Yes No

If no, please specify: Has the case been through an ADR procedure? Yes No If yes, who was the mediator? Judge Mark Davidson What type of ADR procedure? Mediation At what stage did the case go through ADR? Pre-Trial Post-Trial Other

If other, please specify:

Type of case? Contract 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): Trial court's denial of Defendant Professional Advantage Software Solutions, Inc.'s Motion to Compel Arbitration & Stay Proceedings

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

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

Will you challenge this Court's jurisdiction? Yes No Does judgment have language that one or more parties "take nothing"? Yes No Does judgment have a Mother Hubbard clause? Yes No Other basis for finality? Rate the complexity of the case (use 1 for least and 5 for most complex): 1 2 3 4 5 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? Yes 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: Thomas C. Wright

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? 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? Yes 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 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 financial circumstances to the Pro Bono Committee? Yes 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).

XV. Signature

Signature of counsel (or pro se party) Date: November 30, 2015

Printed Name: Thomas C. Wright State Bar No.: 22059400

Electronic Signature: /s/ Thomas C. Wright (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 1, 2015 .

Signature of counsel (or pro se party) Electronic Signature: /s/ Thomas C. Wright (Optional)

State Bar No.: 22059400 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 1, 2015 Manner Served: eServed

First Name: Timothy

Middle Name: Last Name: McCloskey Suffix: Law Firm Name: Carrigan, McCloskey & Roberson LLP Address 1: 945 Heights Blvd. Address 2: City: Houston State Texas Zip+4: 77008 Telephone: ext. Fax: Email: tmccloskey@cmrllp.com

If Attorney, Representing Party's Name: West Gulf Maritime Association, Inc. Please enter the following for each person served:

Date Served: December 1, 2015 Manner Served: eServed

First Name: Blake

Middle Name: Last Name: Rizzo Suffix: Law Firm Name: Carrigan, McCloskey & Roberson LLP Address 1: 945 Heights Blvd. Address 2: City: Houston State Texas Zip+4: 77008 Telephone: ext. Fax: Email: brizzo@cmrllp.com

If Attorney, Representing Party's Name: West Gulf Maritime Association, Inc.