in Re George Green and Garlan Green ( 2015 )

ACCEPTED
03-14-00725-CV
4311722
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/27/2015 11:20:28 AM
JEFFREY D. KYLE
CLERK
CAUSE NO. 03-14-00725-CV
FILED IN
3rd COURT OF APPEALS
IN THE AUSTIN, TEXAS
THIRD COURT OF APPEALS 2/27/2015 11:20:28 AM
AUSTIN, TEXAS JEFFREY D. KYLE
Clerk
GEORGE GREEN
Appellant
VS.
PORT OF CALL HOMEOWNERS ASSOCIATION, RANDOLPH HARIG,
PHILLIP JACOBS, JOHN ROSS BUCHHOLTZ AND RICHARD PAT
MCELROY
Appellees
On Appeal from the
RD
33 DISTRICT COURT
of LLANO COUNTY, TEXAS
APPELLEES’ REPLY IN SUPPORT OF THE MOTION
TO DISMISS BECAUSE OF MOOTNESS
Brantley Ross Pringle, Jr.
State Bar No. 16330001
rpringle@2w-g.com
Heidi A. Coughlin
State Bar 24059615
hcoughlin@w-g.com
Mike Thompson, Jr.
State Bar No. 19898200
mthompson@w-g.com
Wright & Greenhill, P.C.
221 W. 6th Street, Suite 1800
Austin, Texas 78701
512/476-4600
512/476-5382 (Fax)
Attorneys for Appellees
CAUSE NO. 03-14-00725-CV
IN THE
THIRD COURT OF APPEALS
AUSTIN, TEXAS
GEORGE GREEN
Appellant
VS.
PORT OF CALL HOMEOWNERS ASSOCIATION, RANDOLPH HARIG,
PHILLIP JACOBS, JOHN ROSS BUCHHOLTZ AND RICHARD PAT
MCELROY
Appellees
On Appeal from the
RD
33 DISTRICT COURT
of LLANO COUNTY, TEXAS
TO THE HONORABLE THIRD COURT OF APPEALS:
NOW COME PORT OF CALL HOMEOWNERS ASSOCIATION,
RANDOLPH HARIG, PHILLIP JACOBS, JOHN ROSS BUCHHOLTZ AND
RICHARD PAT MCELROY (“Appellees”), filing their Reply in Support of the
Motion to Dismiss Appellant’s Appeal Because of Mootness, and would show unto
this Court as follows:
I.
ARGUMENT AND AUTHORITIES
1. Appellant sought to challenge the trial court’s order controlling discovery in
that court, claiming that it was an injunction. (Appellants’ Response p. 4)
However, properly understood, the original order the Appellant has sought to
appeal is a discovery order. Wood v. Moriarty, 940 S.W.2d 359 (Tex. App.—
-2-
Dallas 1997, no pet). As a discovery order, it is inherently interlocutory and not
subject to interlocutory appeal. Velez v. DeLara, 905 S.W.2d 43, 45 (Tex. App.—
San Antonio 1995, no writ). More importantly, the trial court vacated the order
complained of. (Supp. CR 4) Appellant agrees that “without more, the Trial Court
had jurisdiction to vacate the Second Order and that the appeal would be moot.”
(Appellant’s Response p. 6) He claims to have “more”. However, properly
understood, Appellant has no exception here to avoid the rule that a vacated order
moots the appeal of that order. In Re Campbell, 106 S.W.3d 788 (Tex.App—
Texarkana 2003). Therefore, this court is without jurisdiction to consider the
appeal, which should be dismissed for mootness.
2. Despite the trial court action vacating the order he complained, Appellant
now seeks extraordinary relief of another order. (Appellant’s Response p. 3)
Assuming arguendo, Appellant has a basis to urge an appeal of the discovery order
prepared and entered after the appealed order was vacated, he should file a new
notice of intent to appeal. Tex. R. App. Pro. 25.1. Moreover, he can seek review of
the discovery order at the district court, where the trial judge, who is managing the
case and is familiar with the situation, retains jurisdiction to do just that.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellees pray that the Court
of Appeals for the Third District of Texas at Austin dismiss this appeal because
there is no longer an issue in controversy and for further relief that they may be
justly entitled to at law or in equity.
-3-
Respectfully submitted,
WRIGHT & GREENHILL, P.C.
221 W. 6th Street, Suite 1800
Austin, Texas 78701
512/476-4600
512/476-5382 (Fax)
rpringle@w-g.com
hcoughlin@w-g.com
mthompson@w-g.com
/s/ Mike Thompson, Jr.
By:
Brantley Ross Pringle, Jr.
State Bar No. 16330001
Heidi A. Coughlin
State Bar No. 24059615
Mike Thompson, Jr.
State Bar No. 19898200
ATTORNEYS FOR APPELLEES
PORT OF CALL HOMEOWNERS
ASSOCIATION, RANDOLPH
HARIG, PHILLIP JACOBS, JOHN
ROSS BUCHHOLTZ AND RICHARD
PAT MCELROY
NOTICE OF ELECTRONIC FILING
The undersigned counsel certifies that on the 27th day of February, 2015, he
has electronically filed the foregoing document with the Third Court of Appeals
Austin, Texas, Clerk’s Office using the electronic filing system through ProDoc
efiling2 and counsel will send notification of such filing to Mr. David Junkin and
Mr. L. Hayes Fuller, III.
-4-
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing has
been served on the following via facsimile or certified mail, return receipt
requested, in accordance with the Texas Rules of Civil Procedure, on this 27th day
of February, 2015.
David Junkin
LAW OFFICE OF DAVID JUNKIN
P. O. Box 2910
Wimberley, TX 78676
L. Hayes Fuller, III
NAMAN HOWELL SMITH & LEE, P.L.L.C
400 Austin Avenue, Suite 800
P. O. Box 1470
Waco, TX 75703-1470
/s/ Mike Thompson, Jr.
Brantley Ross Pringle, Jr.
Heidi Coughlin
Mike Thompson, Jr.
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