in Re George Green and Garlan Green ( 2015 )

ACCEPTED
03-14-00725-CV
3918372
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/27/2015 3:12:26 PM
JEFFREY D. KYLE
CLERK
CAUSE NO. 03-14-00725-CV
FILED IN
3rd COURT OF APPEALS
INTHE AUSTIN, TEXAS
THIRD COURT OF APPEALS 1/27/2015 3:12:26 PM
AUSTIN, TEXAS JEFFREY D. KYLE
Clerk
GEORGE GREEN
By Power of Attorney for Father Garlan Green
Appellants
vs.
PORT OF CALL HOMEOWNERS ASSOCIATION, RANDOLPH HARIG,
NANCY CAROTHERS, PHILLIP JACOBS, JOHN ROSS BUCHHOLTZ AND
RICHARD PAT MCELROY
Appellee
On Appeal from the
33Ro DISTRICT COURT
of LLANO COUNTY, TEXAS
APPELLEES' 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 Agreed Motion to Extend
Time to File Brief, 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. (Ex. A).
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 §51.014(a)(4) and Chapter 65 of
the Texas Civil Practice and Remedies Code. Appellees understand the Order
from which Appellants seek relief is a discovery sanction. Wood v Moriarty, 940
S.W.2d 359 (Tex. App-Dallas, 1997, no pet.)
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
-2-
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) 1 That is the order that is the
subject of this appeal.
6. After that Order was entered, George Green advised that he disagreed with
the Order, came to meetings of the Association and participated in those meetings
(Ex. A). Appellees agree that the Order does not prevent him from attending or
speaking at those meetings.
D.
EXTENSION OF DATE TO FILE BRIEF REQUESTED
7. The parties are discussing possible modification of the Order at issue in the
trial court. Such action may moot this appeal. Moreover with Garlan Green's
death, Appellees believe the Power of Attorney may be nullity and a representative
of his Estate must be named to pursue his case.
9. Under these circumstances, Appellees pray the Court grant this Motion and
extend its deadline to file a brief for thirty (30) days until March 5, 2015.
10. Appellants' counsel has agreed to this extension.
1
A copy of that Order was also attached to Appellant's Docketing Statement.
-3-
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 thirty (30) days until March 5, 2015, and further pray for
further relief that they may be justly entitled to at law or in equity.
Respectfully submitted,
WRIGHT & GREENHILL, P.C.
221 W. 6th Street, Suite 1800
Austin, Texas 78701
5121476-4600
5121476-5382 (Fax)
rpringle@w-g.com
hcoughlin@w-g.com
mthompson@w-g.com
Isl 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
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CERTIFICATE OF CONFERENCE
Appellant agrees to a 30-day extension of the deadline for Appellees to file
their brief.
NOTICE OF ELECTRONIC FILING
The undersigned counsel certifies that on 27'h day of January, 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.
-5-
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 27'h day
of January, 2015.
David Junkin
LAW OFFICE OF DA YID JUNKIN
P. 0. Box 2910
Wimberley, TX 78676
L. Hayes Fuller, III
NAMAN HOWELL SMITH & LEE, P.L.L.C
400 Austin Avenue, Suite 800
P. 0. Box 1470
Waco, TX 75703-1470
Isl Mike Thompson, Jr.
Brantley Ross Pringle, Jr.
Heidi Coughlin
Mike Thompson, Jr.
-6-
Exhibit A
CAUSE NO. 03-14-00725-CV
IN THE
THIRD COURT OF APPEALS
AUSTIN, TEXAS
GEORGE GREEN
By Power of Attorney for Father Garlan Green
Appellant
vs.
PORT OF CALL HOMEOWNERS ASSOCIATION, RANDOLPH HARIG,
NANCY CAROTHERS, PHILLIP JACOBS, JOHN ROSS BUCHHOLTZ AND
RICHARD PAT MCELROY
Appellee
On Appeal from the
33Ro DISTRICT COURT
of LLANO COUNTY, TEXAS
AFFIDAVIT OF HEIDI COUGHLIN,
LEGAL NAME HEIDI VAN REET
BEFORE ME, the undersigned notary, personally appeared Heidi Coughlin,
the Affiant, a person whose identity is known to me. After I administered an oath,
Affiant testified as follows:
1. "My name is Heidi Coughlin. I am over 18 years of age, of sound
mind, and capable of making this Affidavit. The facts stated in this
Affidavit are within my personal knowledge and are true and correct.
2. "I have reviewed the Docket Sheet for this case, my pleadings file and
the Appellee' s Motion to Dismiss Appellant's Appeal for Lack of
Jurisdiction and can state the following from that review.
3. "The Order attached to the Plaintiff's Notice of Intent to Appeal is a
true and correct copy of the Order that was entered by the Court in
response to Appellees' Motion for Enforcement of the Protective
Order.
4. "Attachment 1 to this Affidavit is a true and correct copy of the
Motion for Enforcement of the Protective Order that was filed on
behalf of my clients.
5. "During the course of this litigation, Appellant had made and
continued to make written and verbal requests for information from
the Homeowner's Association on an almost weekly basis. Frequently,
new requests for updated information were made while outstanding
requests were being responded to. Furthermore, Appellant repeatedly
requested documents and information that had been previously
produced to him. The requests were creating a unique burden on the
Homeowner's Association to respond and the requests were
unreasonable.
6. "Accordingly, on behalf of our clients, we filed the initial Motion for
Protective Order requesting that the Court enter an Order to manage
Appellant's request for information from Appellees and to provide
reasonable discovery during the pendency of the litigation. The Court
entered such an Order on August 14, 2014.
7. "Subsequent to the August Order of Protective, Appellant made
additional written requests for information to Appellees despite the
terms of the Court order.
8. "As a result, Appellees filed their Motion to Enforce the Protective
Order which was argued on October 14, 2014 and granted by written
Order on October 21, 2014.
9. "This appeal followed.
-2-
10. "Following entry of the Order on October 21, 2014, George Green
attended a meeting of the Homeowners Association on November 1,
2014. Mr. Green stated that he interpreted the Order to allow him to
attend and speak at Home Owner Association Meetings. We agreed
with him and do not interpret the Order of 21, 2014 as preventing him
from attending or participating in such meetings.
11. "On January 22, 2015, in a phone call with Appellant's lawyer, I
learned that Garlan Green had passed away."
Heidi oughlin
Affiant
-3-
STATE OF TEXAS §
§
COUNTY OF TRAVIS §
BEFORE ME, the undersigned authority, on this day personally
appeared Heidi Coughlin Van Reet who being first duly sworn, stated that
all facts contained in the foregoing Affidavit are true and correct to the best
of her knowledge and belief.
\ SUBSCRIBED AND SWORN TO this Jrth day of
~"\) ttj\.':\. '2015.
Notary Public, State of Texas
-4-
Attachment 1
CAUSE NO. 18314
GEORGE GREEN §
§
§
v. §
§
PORT OF CALL HOMEOWNERS §
ASSOCIATION, RANDOLPH HARIG, §
NANCY CAROTHERS, AND PHILLIP §
JACOBS, JOHN ROSS BUCHHOLTZ, § 33rd JUDICIAL DISTRICT
AND RICHARD PAT MCELROY §
DEFENDANTS' MOTION TO ENFORCE PROTECTIVE ORDER
TO THE HONORABLE" JUDGE OF SAID COURT:
COME NOW, Port of Call Homeowners Association, Randolph Harig, Phillip
Jacobs, John Ross Buchholtz and Richard Pat McElroy, Defendants in the above-entitled
and numbered cause, and file this their Motion to Enforce Protective Order and in
support thereof, would respectfully show unto the court as follows:
I.
On August 14, 2014 Defendants and Plaintiff appeared, by and through their
counsel, before Judge Garrett on various issues including Defendants' Molion for
Protective Order. Given Plaintiff's unreasonable, overly burdensome and abusive
requests for documents, Judge Garrett granted Defendants' Motion for Protective Order
and ruled that Plaintiff was no longer allowed to pepper Defendants with document
requests and, in turn, Defendants had to supplement production of the Port of Call
Homeowners Association's records every forty-five (45) days from the date of the
Order. See Exhibit "A".
Defendants have gone to great lengths and.costs to abide by the Judge's ruling.
Since the hearing Defendants have supplemented their production with over 1,400
pages of documents. See Exhibit "B"; documents produced on August 22, 2014 Bates
Labeled POC 6217-6253, and documents produced Bates Labeled POC 6254-7641 on
September 11, 2014.
It has been less than sixty (60) days since the Judge's ruling and Plaintiff has
already violated the Protective Order by sending a threatening "Demand for
Information" to Defendants directly. See Exhibit "C." Not only is this request a clear
violation of the Court's ruling, it demands that Defendants create documents 1, which
they are under no obligation to do. Furthermore, Plaintiff already has the only
document he specifically requests in violation of the Protective Order because
Defendant produced it to him on Sept. 11, 2014. See Exhibit "D."
The Court went to great pains to clarify the duties and obligations of Plaintiff
and Defendants in the hearing on August 14, 2014 and in his subsequent Order. The
Court went so far as to state that any party in violation of his ruling would be
sanctioned. Plaintiff knows that his actions are in clear violation of the Judge's Order.
Defendants now seek enforcement of Judge Garrett's ruling as well as sanctions against
Plaintiff. Defendants seek sanctions against Plaintiff to compensate Defendants for
bringing this motion and to deter continued violations of the Order.
WHEREFORE, PREMISES CONSIDERED, Defendants would respectfully
request that the foregoing Motion to Enforce Protective Order be sustained, that the
Court enter an order setting forth the sanction levied against Plaintiff, and for such
other and further relief to which the Defendants may show themselves justly entitled, at
law or in equity.
1
"As soon as possible but not later than 3 days from the receipt of this demand for
information provide a detailed summary of any and all statements verbal or by written
handout provided to members in attendance." Page 1-2 <[7,8,9.
Respectfully submitted,
WRIGHT & GREENHILL, P .C.
221 W. 6th Street, Suite 1800
Austin, Texas 78701
512/ 476-4600
512/ 476-5382 (Fax)
rl2ri!:!gle@w-g.com
hcoughlin@w-g.com
By:~~~~~~~~~­
Brantley Ross Pringle, Jr.
State Bar No. 16330001
Heidi A. Coughlin
State Bar No. 24059615
ATTORNEYS FOR DEFENDANTS
PORT OF CALL HOMEOWNERS
ASSOCIATION, RANDOLPH HARIG,
PHILLIP JACOBS, JOHN ROSS
BUCHHOLTZ AND RICHARD PAT
MCELROY
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 10th day of October, 2014.
David Junkin
LAW OFFICE OF DAVID JUNKIN
P. 0. Box 2910
Wimberley, TX 78676
L. Hayes Fuller, III
NAMAN HOWELL SMITH & LEE, P.L.L.C
400 Austin Avenue, Suite 800
P. 0. Box 1470
Waco, TX 75703-1470
Heidi A. Coughlin
\lt..t..HI\ ~/1Vt ••\VI ,,,_..., .• ,.•I .,., • • •
F~LElfJ
AUG 111 201'1
CAUSE NO. 18314 A1, j ; ;1.. J:: __.O'CLOCK ~--J}.;_M
\ .~J.W iJf~
GEORGE GREEN § IN:~~-D~TRIC~~~;;; \
§
§
v § OF LLANO COUNTY, TEXAS
§
PORT OF CALL HOMEOWNERS §
ASSOCIATION, RANDOLPH HARIG, §
NANCY CAROTHERS, AND PHILLIP §.
JACOBS, JOHN ROSS BUCHHOLTZ, § 33·• JUDICIAL DISTRICT
AND RICHARD PAT MCELROY §
ORDER GRANTING DEFENDANTS' MOTION TO COMPEL AND PROTECTIVE
ORDER
On this 14th day of August came for consideration in the above-styled and
numbered cause, Defendant's Motion to Compel and Motion for Protective Order.
I.
This Court having heard the arguments of both Plaintiff and Defendants agrees
to GRANT Defendants' Motion to Compel George Green .and 6arlan GreBJ.'b.s.
Depwition~ This Court ORDERS George Green and Garland Green be presented for
deposi.tion on or before ~ 2014. ~ti:ortaJ.l..y-t;-l'flnl~
Dfilerrda~~-ees- against tli"eftaimiff in the tti''tt€H:l~
~~~6)-"'v'ith tho~eeeffti.Rg-dtte-and:-
p~'l'hti(.>-l"J'rrl\ir-rt-~'1'W'1fh>-Hl4~rff~ecn do not appear fei;: depooi~s--s-Ea.recl
~
II.
This Court also GRANTS Defendants' Protective Order and this Court ORDERS
that documents previously produced to Plaintiff in a digital format are sufficient to
comply with. Def.endants' requirements for production of documents. Further, thfo1
l:XHIBIT ~
Court 3n~S that Defe~dants only need to supplement documents to Plainpff I~~>J
fil~1~nr:tbeginning on A»Jbt 1l1.vv io1 ~ .w~ ~ ~..Jrfaa~
1
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:r1:-IBr-t.l:0fflible-thh~a-P~Y.-....
SIGNED this ( lf~day of 4-v3Af'Y'I- ,2014.
~~~-------··
~ieSiCfu1g
( (
·~
WRJGHT & GREENHJLL, P.C.
ATTORNEYS AT LAW
221 WEST 6TH STREET, SUITE 1 800 TELEPHONE 512/476-4600
AUSTIN, TEXAS 78701-3495 FACSIMILE 51 2/ 476-5382
P.O. Box 21 66 • 78768 DIRECT DIAL 51 2/708-5234
HEIDI A. COUGHLIN E·MAIL HCOUGHLIN @W-G.COM
August 22, 2014
VIA FACSIMILE and CMIRRR
Mr. David Junkin
LAW OFFICE OF DAVID JUNKIN
P. 0. Box 2910
Wimberley, TX 78676
RE: Cause No. 18,314; George Green v. Port of Call Homeowners Association,
Randolph Harig, Nancy Carothers, Philip Jacobs, et al; In the District Court of
Llano County, Texas 33rd Judicial District
Our File No. 9792-43682
Dear Mr. Junkin:
Please find enclosed the following documents in connection with this matter:
I. Defendants Port of Call Homeowners Association (Incorporated), Pat McElroy, John
Buchholtz, Phillip Jacobs and Randy Harig's Supplemental documents POC 6217 -
POC 6253.
Sincerely,
Wright & Greenhill, P.C
By: _ _ _ _ _ _ _ _ __
Heidi A. Coughlin
HAC/scb
enclosures
cc: L. Hayes Fuller, III - VIA REGULAR MAIL
.,
EXHIBlT I
11 Comple.te items 1, 2, and 3. Also complete
item 4 if Restricted Delivery is desired.
111 Print your name and address on the reverse
so that we can return the card lo you.
111 Attach this card to the back of the maflpiece,
or on the front ff space permits.
D. Is delivery address different from item 1?
1. Artie le Addressed to: If YES, enter delivery address below:
~\~~\'-~~
' ~ -G ,{hoy:: 2 °\ \ 0
V\~b(_r-\'-\ ~ ige:,t b 3. Service Type
ertified Mail D Express Mail
egistered ~Return Receipt for Merchandi~t
D Insured Mail OC.O.D.
4. Restricted Delivery? (Extra Fee) D Yes
2
.... 70D9 ·-1410 DD 01 6 2 2 3 8 4 4 0
PS Form 3811, July 1999 102595·00·1.1·0952
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WRIGHT&GREENHILL r··;= 5124 767357
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** Transmit Conf. Report **
P. 1 Aug 22 2014 16:12
Line WRIGHT&GREENHILL Fax:5124767357
Fax/Phone Number Mode Start Time Page Result Note
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. WRIGHT & GRF.F.NRXLL, P.r..
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TO: NAJYm
D;:ivid funkin 5.12-847-860.4
T.. llayes Fuller:- 254- 7.51·-63 31
TOTAL NllM.RER OP' ~AGES ~~
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C/M II: 9792-4~082 . I!At;:/11
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