TXU Energy Retail Company LLC v. Fort Bend Independent School District

ACCEPTED 05-15-01520 FIFTH COURT OF APPEALS DALLAS, TEXAS 12/16/2015 10:22:51 AM LISA MATZ CLERK Appellate Docket Number: i 05-15-01520-CV Appellate Case Style: TXU Energy Retail Company LLC 1111111111111111111111111111111111111111 Vs. Fort Bend Independent School District FILED IN : 5th COURT OF APPEALS Companion Case No.: DALLAS, TEXAS 12/16/2015 10:22:51 AM LISA MATZ Clerk Amended/corrected statement: DOCKETING STATEMENT (Civil) Appellate Court: 5th Court of Appeals (to be filed in the court of appeals upon perfection of appeal under TRAP 32) L Appellant II. Appellant Attorney(s) ❑ Person M Organization (choose one) 4 Lead Attorney Organization Name: TXU Energy Retail Company First Name: John First Name: Middle Name: Franklin Middle Name: IIIIIIIIIIIIIIIIIIIIIIMM= Last Name: Guild Last Name: 1111111111111111111111111111111111111111 Suffix: Suffix: gm Law Firm Name:Gruber Hurst Elrod Johansen Hail Shank _. Pro Se: 0 Address 1: 1445 Ross Ave. Address 2: Suite 2500 City: Dallas State: Texas i Zip-I4: i ,, Telephone: 214-855-6800 Fax: 214-855-6808 Email: jguild@ghetrialcom SBN: 24041022 A. Appellant IL Appellant Attorney(s) ., 0 Person ❑ Organization (choose one) ❑ Lead Attorney First Name: Michael First Name: 111111.1•11.11111MIMMI Middle Name: K. MillirMai Middle Name: simminiumigiativ - ,,, . • Last Name: Hurst Last Name: 11111111111111111111111111111111Waii Suffix: Suffix: 11111111111111 Law Firm Name: Gruber Hurst Elrod Johansen Hail Shank LLP Pro Se: 0 Address 1: 11445 Ross Ave. Address 2: Suite 2500 Page 1 of 10 City: Dallas State: Texas Zip+4: 75204 _ Telephone: 214-855-68,„j ext. 111111111 Fax: 214-855-6808 'rano Email: mhurst@ghetrial.com '41,11INIMI11.111M SBN: 10316310 L Appellant IL Appellant Attorney(s) ❑ Person [ Organization (choose one) II Lead Attorney First Name: A. Shona First Name: . Middle Name: , Middle Name: , Last Name: a. , , , , Last Name: ,p,. Suffix: Suffix: Law Finn Name:Gruber Burst Elrod Johansen Hail Shank L Pro Se: 0 Address 1: '11445 Ross Ave-- -- -- '.'0, -1- Addreas 2: Suite 25.991 City: Dallas State: texas Zip+4: 73201. 1111111,1 Telephone: 214-855-6800 ! ext. Fax: 214-855-6808 Email: Orown®ghetrial.com , SBN: 4007164 „, ' IL ellant Attorney(s) ,•,,, L Appella ❑ Person ❑ Organization (choose one) • Lead Attorney First Name: Jonathan , First Name: Middle Name: R, Middle Name: Last Name: Childers Last Name: - Suffix: Suffix: I ., Law Firm Name:Gruber Hurst Elrod Johansen Hail Shank LLP Pro Se: 0 Address 1: 1445 Ross Ave. I Address 2: Suite 2500 i City: . _ State: Texas ,,, • : 75 'O'P) Telephone: 214-855-6800 ext. , Fax: 214-855-6808 Email: jchilders@ghettiare - SBN: 24050411 III. Appellee W. Appellee Attorney(s) • Person a Organization (choose one) 0 . Lead Attorney Organization Name: Fort Bend Independent School District I First Name: Richard Page 2 of 10 First Name: Middle Name: MI111111111111111111111111111111111111111111111 Middle Name: Last Name: Last Name: Suffix: Suffix: Law Firm Name: R..ogers,Morsy, Pro Se: 0 Address 1: 5718 westiiiMEMMINEMEM Address 2: Suite 1204111.11011.01.11EM City: Houston State: Texas Telephone: 713-960-6000 Fax: 713-960-6025 Email: rmorris@rmgllp.coMr SBN: 14497750 '71110 IIL Appellee IV. Appellee Attorney(s) ❑ Person El Organization (choose one) ❑ Lead Attorney First Name: lonathan First Name: 1111111111MOMMIMIN. Middle Name: G. Middle Name: 11111111111MMIESIMISI Last Name: Brush Last Name: 1111111.111=1111111111111111111111 Suffix: Suffix: Law Firm Name: Rogers, Morris & Grover,'L.L.P. Pro Se: 0 Address 1: 5718 WestheimeraiggioL Address 2: Suite 1200 City: Houston 1111111111111111111111lNIIIIIIIII State: Texas ziph4: 7705 Telephone: 713-960-6000 ext. Fax: q13-960-6025 Email: ihrush@migllp.coni SBN: 0045576 Page 3 of 10 V. Perfection Of Appeal And Jurisdiction Nature of Case (Subject matter or type of case): Contract •— , , ,' Aaiiiii Date order or judgment signed: November 24, 2015 Type of judgment: §iiarairJudgment Date notice of appeal filed in trial court: December 14, 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): U Yes ,','.i No If yes, please specify statutory or other basis on which appeal is accelerated: F'...: . ; Parental Termination or Child Protection? (See TRAP 28.4): ❑Yes • No Permissive? (See TRAP 28.3): NI Yes 0 No If es, • lease s • statutory or other basis for such status: -'-' Agreed? (See TRAP 28.2): ❑ Yes 0 No If yes, please specify statutory or other basis for such status: Appeal should receive precedence, preference, or priority under statute or rule: ❑ Yes CA No If yes, please specify statutory or other basis for such status: Does this case involve an amount under $100,000? • Yes .0 No Judgment or order disposes of all parties and issues: 0 Yes ❑No Appeal from final judgment: ,►A Yes ❑ No Does the appeal involve the constitutionality or the validity of a statute, rule, or ordinance? ❑ Yes 0 No VL Actions Extending Time To Perfect Appeal Motion for New Trial: N Yes ►.1 No If yes, date filed: Motion to Modify Judgment: N Yes 0 No If yes, date filed: Request for Findings of Fact ❑ Yes 0 No If yes, date filed: and Conclusions of Law: ['Yes No If yes, date filed: Motion to Reinstate: ❑ Yes CA No If yes, date filed: Motion under TRCP 306a: Other. NI Yes CA No ."-'.7.r : 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: 111Yes 0 No If yes, date filed: 111111111111.11111 Date ruling on contest due: _, Ruling on contest: • Sustained • Overruled Date of ruling: MIIIIIIIIII Page 4 of 10 VIII. Bankruptcy Has any party to the court's judgment filed for protection in bankruptcy which might affect this appeal? ❑ Yes a No If yes, please attach a copy of the petition. Date bankruptcy filed: 1 Bankruptcy Case Number IX. Trial Court And Record __ Court: 116th Judicial District Clerk's Record: County: Dallas Coun ' - Trial Court Clerk: a District ❑ County Trial Court Docket Number (Cause No.): 13-14961 ' - r --. Was clerk's record requested? a Yes ❑ No If yes, date requested: December 14, 2015 ! Trial Judge (who tried or disposed of case): If no, date it will be requested: First Name: Tonya Were payment arrangements made with clerk? Middle Name: gitiaggailliMMangv*I1 a Yes a No III Indigent Last Name: (Note: No request required under TRAP 343(a),(b)) Suffix: Address 1: X600 Commerce SAIIIIIIIIIIIIIIIIIIOI Address 2 : Box 640 41.1111 City: Dallas IMMERRINIMMINIMI State: Texas ; Zip + 4: 75202= Telephone: 214-653-6015 ' ext. Ire Fax: Email: stownsend@dallascourts.org Reporter's or Recorder's Record: Is there a reporter's record? III Yes a No Was reporter's record requested? ❑ Yes a No Was there a reporter's record electronically recorded? ❑ Yes 0 No If yes, date requested: HIMEMIIIIII If no, date it will be requested: , Were payment arrangements made with the court reporter/court recorder? ii yes II No ❑Indigent Page 5 of 10 ❑ Court Reporter ❑ Court Recorder ❑ Official ❑ Substitute First Name: Inilat, Middle Name: 111.11E_ _ Last Name: - Suffix: Address 1: 1 Mill1111111.11 Address 2: Ineneginli City: .. ,A1111 State: Texas; Zip + 4: Telephone: ext. ,._ITIMI Fax: Email: ., , . . .,. f. X. Superse ens Bond ., --:K..:` Supersedeas bond filed: ❑ Yes • No If yes, date filed: I Will file: ❑ Yes • No XL Extraordinary Relief Will you request extraordinary relief (e.g. temporary or ancillary relief) from this Court? • Yes a No If yes, briefly state the basis for your request XII. Alternative Dispute Resolution/Mediation (Complete section if filing in the let, 2nd, 4th, 5th, 6th, 8th, 9th, 10th, 11th, 12th, 13th, or 14th Court of Appeal) Should this appeal be referred to mediation? Yes FI No If no, please specify:This case has been through ADR. Has the case been through an ADR procedure? lJYes ❑ No If yes, who was the mediator? Gary D. Eisenstat -; ,. What type of ADR procedure? Mediation . At what stage did the case go through ADR? 0 Pre-Trial ❑ Post-Trial ❑ Other _ .,. - If other, please specify: Type of case? Contract ' r 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): Whether Fort Bend Independent School District is entitled to imtunity from suit on a contract between it and the Plaintiff. How was the case disposed of? Summary Judgment Summary of relief granted, including amount of money judgment, and if any, damages awarded. Summary Judgment in favor of Fort Bend ISD If money judgment, what was the amount? Actual damages: Punitive (or similar) damages: 1 Page 6 of 10 Attorney's fees (trial): Attorney's fees (appellate): Other: If other, please specify:1 Will you challenge this Court's jurisdiction? ❑ Yes 0 No Does judgment have language that one or more parties "take nothing"? IS] Yes ❑ No Does judgment have a Mother Hubbard clause? ❑Yes 0 No Other basis for finality? Order disposes of only remaining claims and states that it is a "Final Judgment" Rate the complexity of the case (use 1 for least and 5 for most complex): D1 D2 E4 E5 Please make my answer to the preceding questions known to other parties in this case. el Yes ❑ No Can the parties agree on an appellate mediator? ❑ Yes g No If yes, please give name, address, telephone, fax and email address: Name Address Telephone Fax Email SIMENEINIMEM Languages other than English in which the mediator should be proficient: Name of person filing out mediation section of docketing statement: JCUIL Related Matters NV41 List any pending or past related appeals before this or any other Texas appellate court by court, docket number, and style. Docket Number: 05-14-01515-CV Trial Court 116th District Court Style: TXU Energy Retail Company LL Page 7 of 10 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 fmancial 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 charg'ng 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 Listsery to its pool of volunteer appellate attorneys. Do you want this case to be considered for inclusion in the Pro Bono Program? ❑ Yes IZ 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 E] 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: December 16, 2015 Printed Name: John Franklin Guild State Bar No.: 24041022 Electronic Signature: /s/ John Franklin Guild (Optional) Page 8 of 10 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 December 16, 2015 • Signature of counsel (or pro se party) Electronic Signature: Is/ John Franklin Guild (Optional) State Bar No.: 24041022 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: December 16, 2015 Manner Served: eServed First Name: Richard Middle Name: A. Last Name: Morris Suffix: Law Finn Name: Rogers, Morris & Grover, L.L.P. Address 1: 5718 Westeimer Address 2: Suite 1200 City: Houston State Efexas Zip+4: 77057 Telephone: 713-960-6000 ext. Fax: 713-960-6025 Email: rmorris@rmgllp.com If Attorney, Representing Party's Name: Fort Bend Inedpendent School District Please enter the following for each person served: Page 9 of 10 Date Served: r December 16, 2015 Manner Served: eServed First Name: Johnathan Middle Name: Last Name: brush Suffix Law Firm Name: Xogers, Morris & Grever„LI.P._ 41111111.11 Address 1: 5718 Westeimer, rc Address 2: Suite 1200 -MINAUNIMIIIII City: Bouston_ State Texas _ Zip+4: Telephone: 713*0:6000111 ext. Fax: 713-960-6025 _ Email: jbrush@rmgllp.coni' If Attorney, Representing Party's Name: Fort Bend Independent School District Please enter the following for each person served: Date Served: [Dedember 16, 2015 Manner Served: 'eSerVed maggir First Name: Stephanie,. Middle Name: Last Name: WM -- 11111, 111111111111E Suffix: Law Firm Name: Rogers,.Morris & Grover3rP. Address 1: 674:Westeimer Address 2: OuiteJ200 AllaW 111.1=rn City: Houston State Texas Telephone: V13-260-6000 ext. Fax: g13-960.7925 • smaher gllp.com If Attorney, Representing Party's Name Pod Bend Independent School District Page 10 of 10