ACCEPTED
03-14-00725-CV
4598006
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/23/2015 11:48:37 AM
JEFFREY D. KYLE
CLERK
No. 03-14-00725-CV
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
3/23/2015 11:48:37 AM
In the Third Court of Appeals JEFFREY D. KYLE
Clerk
Austin, Texas
GEORGE GREEN AND GARLAN GREEN (DECEASED),
Appellants
v.
PORT OF CALL HOMEOWNERS ASSOCIATION
Appellee
APPEAL FROM CAUSE NO. 18314
RD
33 JUDICIAL DISTRICT COURT OF LLANO COUNTY, TEXAS
HON. ALLAN GARRETT, PRESIDING
APPELLANTS’ SUPPLEMENTAL RESPONSE
TO APPLELLEES’ MOTION TO DISMISS
David Junkin
State Bar No. 11058020
Law Office of David Junkin
P.O. Box 2910
Wimberley, Texas 78676
512/847-8600
512/847-8604 (fax)
david@junkinlawoffice.com
Attorney for Appellants
TO THE HONORABLE THIRD COURT OF APPEALS:
Appellants, George Green and Garlan Green (now deceased) file this
supplemental response to the Appellee’s Motion to Dismiss Appellant’s Appeal
Because of Mootness (the “Motion to Dismiss”) as follows:
1. On February 22, 2015 the Appellants filed their response to the
Motion to Dismiss and requested additional time to respond based on a
supplemental Reporter’s Record requested by Appellees. In following up on
the Supplemental Reporter’s Record, it appears that Appellees’ cancelled the
request for the Supplemental Record. See Exhibit A. Appellants were not
aware that Appellees canceled their request for a supplemental record.
2. The portions of the Supplemental Reporter’s Record that contain
statements from Appellees’ counsel reflecting the injunctive nature and purpose
of the “Discovery Order,” include, but are not limited to, the following:
MR. JUNKIN: . . . In other words, it says -- this
is in the third paragraph down, beginning about
in the middle, "Plaintiff's requests, oral or
written, for documents addressed in this order or
previously produced by Defendants will be viewed
as an abuse of discovery and subject to
sanctions." . . .
THE COURT: Well, I was proposing taking that
paragraph out completely and just putting, "Any
violation of this order". Any consternation with
that? I mean...
MS. COUGHLIN: The only issue I have with that,
Your Honor, is that by removing that paragraph
Appellants’ Supplemental Response to Motion to Dismiss - Page 1
entirely, the plaintiff, without his attorney,
can continue -- once he gains standing -- sending
these letters, "You better give me these
documents within three days or else." And that
kind of brings us back to where we started in
October. So I thought this was middle ground
because it says, in Paragraph 2, defendants can
ignore your requests, and in Paragraph 3 says if
you keep doing it, you can get sanctioned.
. . .
MS. COUGHLIN: And, Your Honor, may I -- I know
I'm belaboring it, but we've been here several
times, and the reason that I believe your order
was as specific as it was, was because the order
that you entered in August was a very short
order. It was after we had a long hearing. And
you had verbally told Mr. Green stop asking, but
the order didn't say that. And so then opposing
counsel came back when we had a hearing saying
you're violating the order and said, "But the
order doesn't say it, so we're not allowed -- you
know, we're allowed to do it." And so it ends up
being a circular argument. If the order doesn't
specifically prohibit behavior, then they're
going to say they're allowed to do it. And if it
does, then it's injunctive in nature and --
Supplemental Reporter’s Record, Page 27, Line 3 through Page 29, Line 16.
3. From the comments above, Appellees’ trial counsel show that the
underlying purpose of the “Discovery Order” is to grant basically the same relief
Appellees’ purport to have gained in the Second Order. The Discovery Order
enjoins requests for documents, including documents available outside of the
discovery process. The Appellees’ request for the Vacating Order and concurrent
Appellants’ Supplemental Response to Motion to Dismiss - Page 2
request for issuance of the “Discovery Order” is an improper attempt to oust this
Court of jurisdiction over the Second Order.
PRAYER
Appellants move that the Appellees’ Motion to Dismiss be denied and
that Appellants be awarded all such other and further relief, including general
relief, to which they might be entitled.
Respectfully submitted,
Law Office of David Junkin
_______________________
David Junkin
State Bar No. 11058020
P.O. Box 2910
Wimberley, Texas 78676
512/847-8600
512/847-8604 (fax)
david@junkinlawoffice.com
Attorney for Appellants
George and Garlan Green
Appellants’ Supplemental Response to Motion to Dismiss - Page 3
CERTIFICATE OF SERVICE
I hereby certify that a copy of this supplemental response was served on
the following counsel of record and in the manner indicated on March 23, 2015.
VIA FAX OR AND/OR ESERVE
Brantley Ross Pringle, Jr.
Heidi Coughlin
Wright & Greenhill, PC
221 West 6th Street, Suite 1800
Austin, TX 78701
VIA FAX AND/OR ESERVE
L. Hayes Fuller, III
Naman, Howell, Smith, & Lee, PLLC
P.O. Box 1470
Waco, TX 76703-1470
___________________________
David Junkin
Appellants’ Supplemental Response to Motion to Dismiss - Page 4
EXHIBIT A