in Re George Green and Garlan Green ( 2015 )

ACCEPTED
03-14-00725-CV
4260131
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/24/2015 12:27:25 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00725-CV
FILED IN
3rd COURT OF APPEALS
IN THE AUSTIN, TEXAS
THIRD COURT OF APPEALS 2/24/2015 12:27:25 PM
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’ SECOND AGREED MOTION TO EXTEND
TIME TO FILE BRIEF
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 Second Motion to Extend
Time to File Brief1, and would show unto this Court as follows:
A.
PARTIES
1. Appellant Garlan Green was a member of the Port of Call Homeowners
Association (HOA). Garlan Green has passed away.
2. Appellant George Green is Garlan’s son and has represented him in this suit
by a Power of Attorney. (CR 136).
3. Appellees are the HOA and individual board members.
B.
INTRODUCTION
4. While subject to further discovery, the case involves claims against the
Appellees claiming they violated the organizational documents of the
Homeowners’ Association for breach of contract, the Property Code, and a breach
of fiduciary duty. Appellants seeking review of an order they claim to be an
injunction filed this Appeal. They base the appeal on §51.014(a)(4) and Chapter
65 of the Texas Civil Practice and Remedies Code. Appellees understand the
Order from which Appellants sought relief is a discovery sanction. Wood v
Moriarty, 940 S.W.2d 359 (Tex. App—Dallas, 1997, no pet.)
1
The first extension was not opposed.
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C.
PROCEDURAL HISTORY
5. In the trial court, a motion was filed by the Appellees seeking protection
from Appellant George Green’s discovery actions. (CR 114-130) After an order
for protection was granted, Appellant George Green continued conduct Appellees
believed subject to the order of protection. Thus, Appellees filed a Motion to
Enforce the Order. (CR 153) A hearing was held on that Motion on October 14,
2014. (CR 175) The Judge granted the Motion to Enforce the Protective Order and
entered an Order on October 21, 2014. (CR 175)2 That is the order that is the
subject of this appeal.
6. Subsequently, the trial court held a hearing about the scope of the order
appealed and vacated that order.
7. As a result of the trial court’s action, Appellees have filed a Motion to
Dismiss the case because the order is moot.
8. The Appellant has responded.
D.
EXTENSION OF DATE TO FILE BRIEF REQUESTED
9. Parties previously agreed to an extension of Appellees’ deadline to file their
Brief.
2
A copy of that Order was also attached to Appellant’s Docketing Statement.
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10. Since that order, Appellees have filed a Motion to Dismiss the appeal
because of mootness as noted above.
11. The Parties have agreed to a two-week extension on the deadline for
Appellees to file a responsive brief from the time the Motion to Dismiss is ruled on
by the Court.
12. Under these circumstances, Appellees pray the Court grant this Motion and
extend their deadline to file their brief until two-weeks after the Motion to Dismiss
is ruled on by the Court.
E.
CONCLUSION
WHEREFORE, PREMISES CONSIDERED, Appellees pray that the Court
of Appeals for the Third District of Texas at Austin extend the deadline for filing
of Appellees’ brief for two-weeks after the motion is ruled on and further pray for
further relief that they may be justly entitled to at law or in equity.
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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
CERTIFICATE OF CONFERENCE
Appellant agrees to a two-week extension for Appellees to file their brief
from the time the Motion To Dismiss is decided.
NOTICE OF ELECTRONIC FILING
The undersigned counsel certifies that on the 24th 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.
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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, in accordance with the Texas Rules of
Civil Procedure, on this 24th 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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