Glenn Beckendorff, in His Official Capacity as Waller County Judge, Frank Pokluda, in His Official Capacity as Waller County Precinct Two Commission, and Stan Kitzman v. City of Hempstead, Texas and Citizens Against the Landfill in Hempstead and Pintail Landfill, LLC

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ACCEPTED 14-15-00322-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 6/5/2015 3:54:20 PM CHRISTOPHER PRINE CLERK NO. 14-15-00322-CV _____________________________________________________________ FILED IN 14th COURT OF APPEALS IN THE COURT OF APPEALS HOUSTON, TEXAS FOR THE FOURTEENTH DISTRICT OF TEXAS 6/5/2015 3:54:20 PM AT HOUSTON, TEXAS CHRISTOPHER A. PRINE _____________________________________________________________ Clerk GLENN BECKENDORFF, IN HIS OFFICIAL CAPACITY AS WALLER COUNTY JUDGE Appellants V. CITY OF HEMPSTEAD, TEXAS AND CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD Appellees _____________________________________________________________ On Appeal from the 506TH Judicial District Court of Waller County, Texas Honorable Terry Flenniken, Presiding NOTICE OF AUTOMATIC SUBSTITUTION PURSUANT TO TEXAS RULE OF APPELLATE PROCEDURE 7.2(a) ______________________________________________________________ TO THE HONORABLE FIRST OR FOURTEENTH1 COURT OF APPEALS: Appellee, the City of Hempstead, Texas moves to dismiss the appeal. I. Background Appellants, Glenn Beckendorff, in his official capacity as Waller County Judge, Frank Pokluda, in his official capacity as Waller County Precinct Two 1 Pursuant to the courts’ local rules, this case should have been assigned to the First Court of Appeals. A motion to transfer was filed 3 June 2015. Commissioner, and Stan Kitzman, in his official capacity as Waller County Precinct Four Commissioner, appeal from the trial court’s judgment signed 20 February 2015. In the underlying lawsuit, the parties were as follows: Plaintiff: City of Hempstead Plaintiff-Intervenor: Citizens Against the Landfill in Hempstead (“CALH”) Defendants: Waller County; Glenn Beckendorff, in his official capacity as Waller County Judge; Frank Pokluda, in his official capacity as Waller County Commissioner; Stan Kitzman, in his official capacity as Waller County Commissioner; Jeron Barnett, in his official capacity as Waller County Commissioner; John Amsler, in his official capacity as Waller County Commissioner; and Pintail Landfill, LLC. After a jury trial, the parties entered into a settlement agreement that included an agreed judgment. All parties moved for the trial court to enter the agreed judgment. The trial court entered judgment on 20 February 2015. At the time the trial court entered judgment, Beckendorff, Pokluda, and Kitzman, had been succeeded in office by the current Waller County elected officials. See Exhibit A (Copy of the Waller County website listing its elected officials).2 Rule 7.2(a) provides: When a public officer is a party in an official capacity to an appeal or original proceeding, and if that person ceases to hold office before the appeal or original proceeding is finally disposed of, the public officer's successor is automatically substituted as a party if appropriate. Proceedings following substitution are to be in the name of the substituted party, but any misnomer that does not affect the 2 The City of Hempstead requests this Court take judicial notice of the elected officials. The facts are generally known within the trial court’s territorial jurisdiction. substantial rights of the parties may be disregarded. Substitution may be ordered at any time, but failure to order substitution of the successor does not affect the substitution. Tex. R. App. 7.2(a) (“Automatic Substitution of Officer”). Because the individuals named as appellants are no longer the elected officials of Waller County, the correct parties—the current elected officials—should are automatically substituted by rule. See Abbott v. G.G.E, 03-11-00338-CV, 2015 WL 1968262, at *1 n.1 (Tex. App.—Austin Apr. 30, 2015, no. pet. h.) (automatic substitution of successors to “former Governor, Commissioners of HHSC and DADS, and the former Directors of the Austin and Mexia SSLCs”); City of Houston v. Strouse, No. 14-10-00239-CV, 2011 WL 304185, at *1 n.1 (Tex. App.—Houston [14th Dist.] Jan. 27, 2011, no pet.) (mem. op.) (automatic substitution of newly appointed chief of police in suit against former chief in his official capacity). The City of Hempstead requests this Court order the clerk to re-style this case to reflect the automatic substitution of public officers. Respectfully submitted, OLSON & OLSON, L.L.P. By: /s/ Eric C. Farrar Eric C. Farrar State Bar No. 24036549 efarrar@olsonllp.com Wortham Tower, Suite 600 2727 Allen Parkway Houston, Texas 77019 Telephone: (713) 533-3800 Facsimile: (713) 533-3888 ATTORNEYS FOR APPELLEE CERTIFICATE OF CONFERENCE The undersigned conferred all appellate counsel of record as follows: David Carp, counsel for appellants – letter faxed and emailed on 15 May; email on 3 June. Counsel for appellants has not indicated whether appellants oppose this motion or not. Brent Ryan, counsel for Pintail Laindfill, LLC – email on 3 June and phone call on 5 June. Counsel for Pintail has not indicated whether Pintail opposes this motion or not. Elton Mathis, counsel for Waller County, county judge, in his official capacity, and county commissioners, in their official capacities, indicated that he agrees to the relief sought in this motion. Blayre Pena, counsel for CALH, indicated that CALH agrees to the relief requested. /s/ Eric C. Farrar Eric C. Farrar CERTIFICATE OF SERVICE I hereby certify that on June 5, 2015 a true and correct copy of the foregoing Notice of Appearance of Appellate Counsel for Appellee was served via e-service: David A. Carp Ms. Carol Chaney Herzog & Carp Law Office of Carol A. Chaney 427 Mason Park Boulevard 820 13th Street Katy, Texas 77450 P.O. Box 966 Facsimile (713) 781-4797 Hempstead, Texas 77445 Facsimile (979) 826-6637 Attorney for Appellant E-Mail: carol.chaney@thechaneyfirm.net Attorneys for Citizens Against the Landfill in Hempstead Mr. Brent W. Ryan Ms. V. Blayre Pena McElroy, Sullivan, Miller, Hance Scarborough, LLP Weber & Olmstead, L.L.P. 400 W. 15th Street, Suite 950 P.O. Box 12127 Austin, Texas 78701 Austin, Texas 78711 Facsimile (512) 482-6891 Facsimile (512) 327-6566 E-Mail: bpena@hslawmail.com E-Mail: bryan@msmtx.com Attorneys for Citizens Attorney for Pintail Landfill, LLC Against the Landfill in Hempstead Elton R. Mathis, Jr. Waller County District Attorney Ruhee G. Leonard Assistant District Attorney 645 12th Street Hempstead, Texas 77445 Facsimile: (979) 826-7722 E-Mail: e.mathis@wallercounty.us Attorney for Waller County, Texas /s/ Eric C. Farrar Eric C. Farrar EXHIBIT A