the Landing Community Improvement Association v. Paul T. Young

Opinion

ACCEPTED 01-15-00816-CV FIRST COURT OF APPEALS Appellate Docket Number: 01-15-00816-CV HOUSTON, TEXAS 9/28/2015 2:46:29 PM CHRISTOPHER PRINE Appellate Case Style: The Landing Community Improvement Association, Appellant CLERK

Vs. Paul T. Young, Appellee

Companion Case No.: FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 9/28/2015 2:46:29 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: The Landing Comm. Imp. Ass’n First Name: Christopher First Name: Middle Name: Ramirez Middle Name: Last Name: Mugica Last Name: Suffix: Suffix: Law Firm Name: Jackson Walker L.L.P.

Pro Se: Address 1: 100 Congress Avenue, Suite 1100 Address 2: City: Austin State: Texas Zip+4: 78701-4042 Telephone: 512.236.2016 ext. Fax: 512.391.2133 Email: cmugica@jw.com SBN: 24027554

I. Appellant II. Appellant Attorney(s) Person Organization (choose one) Lead Attorney Organization Name: The Landing Comm. Imp. Ass’n First Name: Courtney First Name: Middle Name: Taylor Middle Name: Last Name: Carlson Last Name: Suffix: Suffix: Law Firm Name: Jackson Walker L.L.P.

Pro Se: Address 1: 1401 McKinney, Suite 1900 Address 2:

Page 1 of 10 City: Houston State: Texas Zip+4: 77010-4037 Telephone: 713.752.4239 ext. Fax: 713.308.4139 Email: ccarlson@jw.com SBN: 24065004

I. Appellant II. Appellant Attorney(s) Person Organization (choose one) Lead Attorney Organization Name: The Landing Comm. Imp. Ass’n First Name: Michael First Name: Middle Name: J. Middle Name: Last Name: Treece Last Name: Suffix: Suffix: Law Firm Name: Treece Law Firm

Pro Se: Address 1: 1020 Bay Area Blvd,. Suite 200 Address 2: City: Houston State: Texas Zip+4: 77058-2692 Telephone: 281.667.3100 ext. Fax: 281.667.3101 Email: mike@treecelaw.com SBN: 20207300

III. Appellee IV. Appellee Attorney(s) Person Organization (choose one) Lead Attorney First Name: Christoper First Name: Paul Middle Name: Middle Name: T. Last Name: Johnson Last Name: Young Suffix: Suffix: Law Firm Name: Lyons & Plackemeier, P.L.L.C Pro Se: Address 1: 518 9th Avenue North Address 2: P.O. Box 2789 City: Texas City State: Texas Zip+4: 77592-2789 Telephone: 409.948.3401 ext. 2 Fax: 409.945.9814 Email: chris@lyonsplack.com SBN: 24069999

III. Appellee IV. Appellee Attorney(s) Person Organization (choose one) Lead Attorney First Name: Ronald First Name: Paul Middle Name: M. Page 2 of 10 Middle Name: T. Last Name: Hall Last Name: Young Suffix: Suffix: Law Firm Name: Ron Hall, Attorney at Law Pro Se: Address 1: 2830 Triway Lane Address 2: City: Houston State: Texas Zip+4: 77043-1809 Telephone: 832.969.7335 ext. Fax: 281.532.6494 Email: rhall@ronhallattorney.com SBN: 00787627

Page 3 of 10 V. Perfection Of Appeal And Jurisdiction

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

Date order or judgment signed: June 18, 2015 Type of judgment: Jury Trial Date notice of appeal filed in trial court: September 8, 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):

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: June 30, 2015 Motion to Modify Judgment: Yes No If yes, date filed: June 30, 2015 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:

Page 4 of 10 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: 56th Judicial District Clerk's Record: County: Galveston Trial Court Clerk: District County Trial Court Docket Number (Cause No.): 13-cv-0293 Was clerk's record requested? Yes No If yes, date requested: September 18, 2015 Trial Judge (who tried or disposed of case): If no, date it will be requested: First Name: Lonnie Were payment arrangements made with clerk? Middle Name: Yes No Indigent Last Name: Cox (Note: No request required under TRAP 34.5(a),(b)) Suffix: Address 1: 600 59th Street, Suite 3302 Address 2 : City: Galveston State: Texas Zip + 4: 77551-4196 Telephone: 409.766.2226 ext. Fax: 409.770.5264 Email: Kay.Hamilton@co.galveston.tx.us

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: July 17, 2015

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

Page 5 of 10 Court Reporter Court Recorder Official Substitute

First Name: Dale Middle Name: W. Last Name: Lee Suffix: Address 1: 600 59th Street, Suite 3203 Address 2: City: Galveston State: Texas Zip + 4: 77551-4178 Telephone: 409.766.2227 ext. Fax: 409.770.5264 Email: Dale.Lee@co.galveston.tx.us

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:

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? Pamela S. Hoerster 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? Injunction and assorted tort claims 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): Appellant seeks reversal of the Judgment primarily because the tort claims are barred and there is legally and/or factually insufficient evidence to support the jury's findings.

How was the case disposed of? Trial Summary of relief granted, including amount of money judgment, and if any, damages awarded. Judgment for Young for IIED; Exterior Maintenance Guidelines invalid. If money judgment, what was the amount? Actual damages: $100,000.00 Punitive (or similar) damages:

Page 6 of 10 Attorney's fees (trial): $90,000.00 Attorney's fees (appellate): $60,000.00 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? Final Judgment issued June 18, 2015 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: Christopher Mugica

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: 01-15-00500-CV Trial Court: 56th Judicial District

Style: Paul T. Young

Vs. William Heins

Page 7 of 10 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). See attached Exhibit 1

XV. Signature

Signature of counsel (or pro se party) Date: September 28, 2015

Printed Name: Christopher R. Mugica State Bar No.: 24027554

Electronic Signature: /s/ Christopher R. Mugica (Optional)

Page 8 of 10 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 September 28, 2015 .

Signature of counsel (or pro se party) Electronic Signature: /s/ Christopher R. Mugica (Optional)

State Bar No.: 24027554 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: September 28, 2015 Manner Served: eServed

First Name: Christopher

Middle Name: Last Name: Johnson Suffix: Law Firm Name: Lyons & Plackemeier, P.L.L.C Address 1: 518 9th Avenue Address 2: P.O. Box 2789

City: Texas City State Texas Zip+4: 77592-2789 Telephone: 409.948.3401 ext. 2 Fax: 409.945.9814

Email: chris@lyonsplack.com

If Attorney, Representing Party's Name: Paul T. Young Please enter the following for each person served:

Page 9 of 10 Date Served: September 28, 2015 Manner Served: eServed

First Name: Ronald

Middle Name: Milton Last Name: Hall Suffix: Law Firm Name: Ron Hall, Attorney at Law Address 1: 2830 Triway Lane Address 2: City: Houston State Texas Zip+4: 77043-1809 Telephone: 832.969.7335 ext. Fax: 281.532.6494

Email: rhall@ronhallattorney.com

If Attorney, Representing Party's Name: Paul T. Young

Page 10 of 10 EXHIBIT 1 The Trial Court’s judgment should be reversed because: (1) litigation immunity bars all tort claims against Appellant; (2) the Trial Court improperly excluded essential testimony regarding other sources of Appellee’s alleged mental anguish suffered due to the “stress” of enduring litigation; (3) the Trial Court allowed improper testimony in support of Appellee’s mental anguish damages; (4) the Trial Court failed to properly apply Texas law to enforce Texas Property Law regarding deed restrictions, community guidelines, and powers vested in Homeowners Associations by the State of Texas, resulting in the submission of an improper charge and instructions to the jury; (5) the Trial Court improperly awarded attorneys’ fees when no cause of action supports such an award; (6) the judgment failed to properly apply settlement credits due to Appellant; (7) damages awarded in the judgment were based upon late-designated evidence which should have been excluded from trial; (8) the judgment should provide that each party will bear its own costs; and (9) there is legally and/or factually insufficient evidence to support the jury’s finding of intentional infliction of emotional distress or any resulting mental anguish or emotional distress.

There are multiple appellate issues in this case with varying standards of review including de novo, abuse of discretion and the standards for reviewing legally and/or factually insufficient evidence.

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