Paul L. Foster, William Eugene Powell, R. Steven Hicks, Nash M. Horne, Robert L. Stillwell, Alex M. Cranberg, Wallace L, Hall, Jr., Brenda Pejovich, Ernest Aliseda, and Jeffrey D. Hildebrand, in Their Official Capacities as Regents v. American Society of Landscape Architects, Inc. and the American Society of Landscape Architects' Library and Education Advocacy Fund, Inc., Individually and on Behalf of Sustainable Sites Initiative, an Unincorporated Nonprofit Association ( 2015 )


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  •                                                                                                ACCEPTED
    03-14-00097-CV
    5180550
    THIRD COURT OF APPEALS
    AUSTIN, TEXAS
    5/6/2015 3:53:50 PM
    JEFFREY D. KYLE
    CLERK
    No. 03-14-00097-CV
    In the                  FILED IN
    3rd COURT OF APPEALS
    AUSTIN, TEXAS
    Court of Appeals for the 5/6/2015 3:53:50 PM
    Third Judicial District at Austin, Texas
    JEFFREY D. KYLE
    Clerk
    PAUL L. FOSTER, WILLIAM EUGENE POWELL, R. STEVEN HICKS,
    NASH M. HORNE, ROBERT L. STILLWELL, ALEX M. CRANBERG, WALLACE L. HALL,
    JR., BRENDA PEJOVICH, ERNEST ALISEDA, AND JEFFREY D. HILDEBRAND,
    IN THEIR OFFICIAL CAPACITIES AS REGENTS OF THE UNIVERSITY; AND CRAIG
    WESTEMEIER, IN HIS OFFICIAL CAPACITY AS ASSOCIATE ATHLETICS DIRECTOR
    Appellants,
    v.
    AMERICAN SOCIETY OF LANDSCAPE ARCHITECTS, INC., AND
    THE AMERICAN SOCIETY OF LANDSCAPE ARCHITECTS’ LIBRARY AND EDUCATION
    ADVOCACY FUND, INC., INDIVIDUALLY AND ON BEHALF OF
    SUSTAINABLE SITES INITIATIVE, AN UNINCORPORATED NONPROFIT ASSOCIATION,
    Appellees.
    On Appeal from the
    98th Judicial District Court of Travis County, Texas
    SUGGESTION OF MOOTNESS
    TO THE HONORABLE THIRD COURT OF APPEALS:
    This dispute centers on the University’s actions with regard to its ownership
    of intellectual property related to the “Sustainable Sites Initiative.” See Appellant’s
    Br. at 2-7. Following a dispute as to the proper procedural framework for obtaining
    federal trademark protection for the program, the University filed its own trademark
    application. See Appellant’s Br. at 9.
    The University is now transferring its interest in the program to a third party,
    Green Business Certification, Inc., which will perform oversight and certification
    programs. Pursuant to that agreement, the University has officially assigned its
    ownership interest in any trademark related to the Sustainable Sites Initiative to
    Green Business Industries. The affidavit of Lee Smith explaining this new third-
    party agreement, to which is attached a copy of the executed assignment, is attached
    to this filing. See TEX. GOV’T CODE § 22.220(C) (providing for consideration of
    affidavit evidence related to jurisdiction).
    A case becomes moot on appeal when “the parties lack a legally cognizable
    interest case in the outcome.” Heckman v. Williamson County, 
    369 S.W.3d 137
    , 162
    (Tex. 2012). The relief requested in the live petition is all related to allegations
    regarding the University’s ownership of the intellectual property. CR.27 (seeking
    declaratory judgment that University is not the “one true owner” of the trademarks,
    relief precluding University from applying for trademark protection). Because the
    University has affirmatively disclaimed any ownership interest in the trademarks by
    assigning its ownership interests to a third party, ASLA no longer has any legally
    cognizable interest in a lawsuit that seeks to establish that the University either does
    2
    not own the trademarks or is not the exclusive owner thereof. ASLA’s claims are
    now moot.
    The appropriate remedy when a case becomes moot on appeal is to vacate any
    underlying orders and dismiss the cause. TEX. R. APP. P. 43.2(e); e.g., Speer v.
    Presbyterian Children’s Home and Serv. Agency, 
    847 S.W.2d 227
    , 229 (Tex. 1993)
    (requiring vacatur and dismissal of underlying orders when case becomes moot);
    Tex. State Bd. of Veterinary Med. Exam’rs v. Giggleman, 
    408 S.W.3d 696
    , 704 (Tex.
    App.—Austin 2013, no pet.) (applying Speer); see also Freeman v. Burrows, 
    171 S.W.2d 863
    , 863 (Tex. 1943) (“When a cause becomes moot on appeal, all previous
    orders and judgments should be set aside and the cause, not merely the appeal,
    dismissed.”).
    This case is, substantively, about the University’s ownership of the
    intellectual property. The University has now disclaimed any ownership of the
    intellectual property by assigning it to a third party. Accordingly, the case has
    become moot on appeal and the Court should vacate any underlying orders and
    dismiss the cause.
    3
    Respectfully submitted,
    KEN PAXTON
    Attorney General of Texas
    CHARLES E. ROY
    First Assistant Attorney General
    SCOTT A. KELLER
    Solicitor General
    /s/ Kristofer S. Monson
    KRISTOFER S. MONSON
    Assistant Solicitor General
    State Bar No. 24037129
    OFFICE OF THE TEXAS ATTORNEY GENERAL
    P.O. Box 12548 (MC 059)
    Austin, Texas 78711-2548
    Tel.: (512) 936-1700
    Fax: (512) 474-2697
    kristofer.monson@texasattorneygeneral.gov
    Counsel for Appellants
    4
    CERTIFICATE OF SERVICE
    On May 6, 2015, this document was served via File&ServeXpress on:
    Kurt Kuhn
    Kuhn Hobbs PLLC
    3307 Northland Drive, Suite 210
    Austin, Texas 78731-4946
    kurt@kuhnhobbs.com
    /s/ Kristofer S. Monson
    KRISTOFER S. MONSON
    5
    

Document Info

Docket Number: 03-14-00097-CV

Filed Date: 5/6/2015

Precedential Status: Precedential

Modified Date: 9/29/2016