                                                                                     ACCEPTED
                                                                               03-14-00725-CV
                                                                                       4114034
                                                                      THIRD COURT OF APPEALS
                                                                                AUSTIN, TEXAS
                                                                           2/11/2015 3:46:31 PM
                                                                              JEFFREY D. KYLE
                                                                                         CLERK
                       CAUSE NO. 03-14-00725-CV

                                                                FILED IN
                              IN THE                     3rd COURT OF APPEALS
                                                             AUSTIN, TEXAS
                      THIRD COURT OF APPEALS             2/11/2015 3:46:31 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
                         33Ro DISTRICT COURT
                      of LLANO COUNTY, TEXAS


     APPELLEES' MOTION TO DISMISS APPELLANT'S APPEAL
                  BECAUSE OF MOOTNESS



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 Motion to Dismiss
Appellant's Appeal Because of Mootness, 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 .1

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 underlying case involves claims
against the Appellees for allegedly violating the organizational documents of the
Homeowners' Association, for breach of contract, breach of the Property Code,
and a breach of fiduciary duty. (CR 136-143)

5.     Appellant seeks review of an order he claims to be an injunction by this
Appeal. He bases the appeal on §51.014(a)(4) and Chapter 65 of the Texas Civil
Practice and Remedies Code. Appellees believe that the order from which
Appellant seeks relief is a discovery order. Wood v Moriarty, 940 S.W.2d 359
(Tex. App-Dallas, 1997, no pet.)

                                               c.
                               PROCEDURAL HISTORY

6.     In the trial court, the Appellees filed a motion seeking protection from
Appellant George Green's discovery actions. (CR 114-130) After an order for
protection was granted (CR 131-132), 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 175f That is the
order that is the subject of this appeal.

1
  It is possible this appeal and suit may not survive the death of Garlan Green. Zipp v. Wuemling,
218 S.W.3d 71 (2007).
2
  A copy of that Order was also attached to Appellant's Docketing Statement.


                                               -2-
7.   The parties agreed that Appellees' deadline to file a brief is extended until
March 3, 2015.

                                     D.
                            APPEAL IS NOW MOOT

8.     On January 30, 2015, a hearing was held in the District Court and the
District Court vacated the Order of October 21, 2014, the subject of this appeal,
(Ex. A, attachment 1) Appellees have made a request to supplement the Clerk's
Record with copies of the order from that hearing.

9.     In light of the District Court actions, this court now has the authority to
dismiss this appeal for lack of jurisdiction because there is no longer an issue in
controversy. See: Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821 (Tex.
2000); Texas A&M University-Kingsville v. Yarbrough, 347 S.W.3d 289, 291 (Tex.
2011); National Collegiate Athletic Association v. Jones, 1 S.W.3d 83, 86 (Tex.
1999).

10. More specifically, this court has the authority to dismiss this appeal because
the discovery order complained of has been vacated. In re Campbell, 106 S. W.3d
788 (Tex. App.-Texarkana 2003)(trial court order vacating earlier contempt order
moots appeal because order no longer exists); In re Sunbelt Rentals, Inc., Relator
2014 WL 7172474 (Tex. App.-Houston [1st Dist.] 2014) (memorandum
opinion)(mandamus action moot where order at issue vacated); In re: Ropal
Anderson, 2015 WL 504971 (Tex. App.-San Antonio 2015) (memorandum
opinion)(when trial court vacated order at issue that mooted mandamus). For these
reasons, Appellees ask this Court to dismiss the appeal.

                                          E.
                                 VERIFICATION

 10    Appellees attach as Exhibit A an affidavit to this motion to confirm facts that
are not yet included in the appellate record, and may not be known to the Court in
its official capacity. Tex. R. App. P. 10.2. In addition, this Court could take
judicial notice of the trial court's order executed January 30, 2015 and included as
attachment to Exhibit A.




                                         -3-
                                      F.
                                  CONCLUSION

       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, Appellees further pray the Court extend
the deadline to file a brief in the unlikely event this Motion is denied until 30 days
after the Court rules on this Motion, 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
                                               512/476-4600
                                               512/476-5382 (Fax)
                                               rpringle@w-g.com
                                               hcou ghl in@ w- g .com
                                               mthomQson@w-g.com

                                                    Is/ Mike Thompson, Jr.

                                                 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




                                         -4-
                      CERTIFICATE OF CONFERENCE

      Appellant would not agree to this Motion.


                     NOTICE OF ELECTRONIC FILING

       The undersigned counsel certifies that on 11th 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.


                         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 11 1h day
of February, 2015.

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 A venue, Suite 800
P. 0. Box 1470
Waco, TX 75703-1470

                                              /s/ Mike Thompson, Jr.
                                              Brantley Ross Pringle, Jr.
                                              Heidi Coughlin
                                              Mike Thompson, Jr.




                                        -5-
EXHIBIT A
                           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
                              33Ro DISTRICT COURT
                           of LLANO COUNTY, TEXAS


                   AFFIDAVIT OF MIKE THOMPSON, .JR.

      BEFORE       ME,    the   undersigned    notary,   personally   appeared    Mike

Thompson, Jr., the Affiant, a person whose identity is known to me.              After I

administered an oath, Affiant testified as follows:

      1.     "My name is Mike Thompson, Jr. 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.     "On January 30, 2015, the parties had a hearing before the District
             Court to evaluate and reconsider the court order of October 21, 2014,
             that is the subject of the appeal.
      3.     "As a result of that hearing, the District Court executed and issued an
             order vacating his earlier order of October 21, 2014. A copy of that
             order is attached as Attachment 1 to this Affidavit."


FURTHER AFFIANT SA YETH NOT.



      SIGNED this
                      y/
                            day of __
                                     <=~
                                     ----l---+--' 2015.

                                                 ~
                                               Mike Thompson, Jr.
                                               Affiant

STATEOFTEXAS     §
                 §
COUNTY OF TRAVIS §

       BEFORE ME, the undersigned authority, on this day personally appeared
Mike Thompson, Jr. who being first duly sworn, stated that all facts contained in
the foregoing Affidavit are true and correct to the best of his knowledge and belief.

      SUBSCRIBED AND SWORN TO this,_._._-=-- day of February, 2015.



                                               Notary Public, State of Texas




                                         -2-
ATTACHMENT 1




          '·
                                           CAUSE NO. 18314

GEORGE GREEN                                       §         IN THE DISTRICT COURT OF
                                                   §
v.                                                 §
                                                   §
PORT OF CALL HOMEOWNERS                            §         LLANO COUNTY, TEXAS
ASSOCIATION, RANDOLPH HARIG,                       §
NANCY CAROTHERS, AND PHILIP                        §
JACOBS, JOHN ROSS BUCHHOLTZ,                       §
AND RICHARD PAT MCELROY                            §         33RD JUDICIAL DISTRICf


                                                 ORDER

       CAME ON to be considered the motion of Defendants to vacate the Order of October 21,

2014 in the above-captioned cause. The Court having considered the motion, the evidence and

arguments of counsel. hereby finds that the motion should be and is hereby GRANTED.

          It is hereby ORDERED that the Court's Order dated October 21. 2014 in this matter is

YACATED without prejudice to seek the relief granted in the October 21, 2014 Order if George

Green acquires standing to prosecute this lawsuit.



       SIGNED this       ?uf"' of    ...-5;w/            '2015.




               JOYCE GILLOW
     ClERK DISTRICT COURT, llANO COUNTY, TEXAS
                 FILED
                 FEB 0 5 2015
     AT     q\·}3        O'ClOCK_A_M
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