DocketNumber： 03-14-00725-CV
Filed Date： 2/27/2015
Status： Precedential
Modified Date： 9/29/2016
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. -5-