Eileen K. Starbranch v. Elizabeth Howard Crowell ( 2015 )

ACCEPTED
01-15-00429-CV
FIRST COURT OF APPEALS
Appellate Docket Number: 01-15-00429-CV HOUSTON, TEXAS
5/11/2015 10:21:21 AM
CHRISTOPHER PRINE
Appellate Case Style: Eileen K. Starbranch CLERK
Vs.
Elizabeth Howard Crowell
Companion Case No.:
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
5/11/2015 10:21:21 AM
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
First Name: Nelson
First Name: Eileen Middle Name: Starbranch
Middle Name: Kathryn Last Name: Ebaugh
Last Name: Starbranch Suffix:
Suffix: Law Firm Name: Nelson S. Ebaugh, PC
Pro Se: Address 1: 2777 Allen Parkway
Address 2: Suite 1000
City: Houston
State: Texas Zip+4: 77019
Telephone: (713) 752-0700 ext.
Fax: (713) 739-0500
Email: nebaugh@ebaughlaw.com
SBN: 24007139
III. Appellee IV. Appellee Attorney(s)
Person Organization (choose one) Lead Attorney
First Name: John
First Name: Elizabeth Middle Name: Bruce
Middle Name: Howard Last Name: Shely
Last Name: Crowell Suffix:
Suffix: Law Firm Name: Andrews Kurth, LLP
Pro Se: Address 1: 600 Travis St
Address 2: Suite 4200
City: Houston
State: Texas Zip+4: 77002
Telephone: (713) 220-4200 ext. 4105
Fax: (713) 220-4285
Email: jshely@andrewskurth.com
SBN: 18215300
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V. Perfection Of Appeal And Jurisdiction
Nature of Case (Subject matter or type of case): Other
Date order or judgment signed: April 28, 2015 Type of judgment: Summary Judgment
Date notice of appeal filed in trial court: May 5, 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:
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:
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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: 55th Civil District Court Clerk's Record:
County: Harris Trial Court Clerk: District County
Trial Court Docket Number (Cause No.): 2013-14192 Was clerk's record requested? Yes No
If yes, date requested: May 5, 2015
Trial Judge (who tried or disposed of case): If no, date it will be requested:
First Name: Jeff Were payment arrangements made with clerk?
Middle Name: A. Yes No Indigent
Last Name: Shadwick
(Note: No request required under TRAP 34.5(a),(b))
Suffix:
Address 1: 201 Caroline
Address 2 : 9th Floor
City: Houston
State: Texas Zip + 4: 77002
Telephone: (713) 368-6055 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:
If no, date it will be requested:
Were payment arrangements made with the court reporter/court recorder? Yes No Indigent
Page 3 of 7
Court Reporter Court Recorder
Official Substitute
First Name:
Middle Name:
Last Name:
Suffix:
Address 1:
Address 2:
City:
State: Texas Zip + 4:
Telephone: 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:
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:The parties discussed settlement without success; and further discussion will be fruitless.
Has the case been through an ADR procedure? Yes No
If yes, who was the mediator?
What type of ADR procedure?
At what stage did the case go through ADR? Pre-Trial Post-Trial Other
If other, please specify:
Type of case? Other
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):
The district court erroneously awarded attorneys' fees under the Declaratory Judgment Act. Review of a trial court's summary judgment is de novo.
How was the case disposed of? Summary Judgment
Summary of relief granted, including amount of money judgment, and if any, damages awarded. declaratory relief & attorneys' fees
If money judgment, what was the amount? Actual damages: $0.00
Punitive (or similar) damages: $0.00
Page 4 of 7
Attorney's fees (trial): $26,462.00
Attorney's fees (appellate): $0.00
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? The Order and Final Judgment entered on April 28, 2015, states: "This is a Final Judgment."
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: Nelson S. Ebaugh
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: 01-13-00826-CV 1st Ct. of Appeals Trial Court: 55th Civil District Court
Style: Rick Rambo and Frances Rambo
Vs.
Elizabeth Howard Crowell
Page 5 of 7
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: May 11, 2015
Printed Name: Nelson S. Ebaugh State Bar No.: 24007139
Electronic Signature: /s/ Nelson S. Ebaugh
(Optional)
Page 6 of 7
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 May 11, 2015 .
Signature of counsel (or pro se party) Electronic Signature: /s/ Nelson S. Ebaugh
(Optional)
State Bar No.: 24007139
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: May 11, 2015
Manner Served: eServed
First Name: John
Middle Name: Bruce
Last Name: Shely
Suffix:
Law Firm Name: Andrews Kurth LLP
Address 1: 600 Travis St
Address 2: Ste 4200
City: Houston
State Texas Zip+4: 77002-292
Telephone: 713-220-4200 ext. 4105
Fax: 713-220-4285
Email: jshely@andrewskurth.com
If Attorney, Representing Party's Name: Elizabeth Howard Crowell
Page 7 of 7