Paul L. Foster, William Eugene Powell, R. Steven Hicks, Nash M. Horne, Robert L. Stillwell, Alex M. Cranberg, Wallace L, Hall, Jr., Brenda Pejovich, Ernest Aliseda, and Jeffrey D. Hildebrand, in Their Official Capacities as Regents v. American Society of Landscape Architects, Inc. and the American Society of Landscape Architects' Library and Education Advocacy Fund, Inc., Individually and on Behalf of Sustainable Sites Initiative, an Unincorporated Nonprofit Association

ACCEPTED
03-14-00097-CV
5325527
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/18/2015 3:12:12 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00097-CV

IN THE THIRD COURT OF APPEALS FILED IN
AUSTIN, TEXAS 3rd COURT OF APPEALS
AUSTIN, TEXAS
_____________________________________
5/18/2015 3:12:12 PM
JEFFREY D. KYLE
P AUL L. F OSTER , WILLIAM E UGENE P OWELL , R. S TEVEN H ICKS, N ASH M.
Clerk
H ORNE , R OBERT L. S TILLWELL , ALEX M. C RANBERG, WALLACE L. H ALL , J R .,
B RENDA P EJOVICH , E RNEST ALISEDA, AND J EFFREY D. H ILDEBRAND, IN TH EIR
OFFICIAL CAPACITIES AS R EGENTS OF TH E U NIVERSITY OF T EXAS S YSTEM AND
C RAIG WESTEMEIER , IN H IS OFFICIAL C APACITY AS ASSOCIATE ATH LETICS
DIRECTOR ,
Appellants,
v.

AMERICAN SOCIETY OF L ANDSCAPE ARCH ITECTS, I NC. AND TH E AMERICAN
S OCIETY OF L ANDSCAPE ARCH ITECTS’ L IBRARY AND E DUCATION ADVOCACY
F UND, I NC., I NDIVIDUALLY AND ON BEH ALF OF S USTAINABLE S ITES I NITIATIVE ,
AN U NINCORPORATED N ONPROFIT ASSOCIATION
Appellees.
_____________________________________

APPELLEES’ RESPONSE TO
APPELLANTS’ SUGGESTION OF MOOTNESS
_____________________________________

TO THE HONORABLE THIRD COURT OF APPEALS:

Appellees (collectively “ASLA”) are in receipt of Appellants’ “Suggestion of

Mootness,” and the Court’s request for a response. Appellants did not confer before

filing, and ASLA disagrees with the argument that University of Texas officials can

moot ASLA’s declaratory judgment action regarding the officials’ prior bad acts by

transferring the University’s interest in the intellectual property to a third party. That

said, ASLA has also now transferred its own interest to the same third party and filed a

nonsuit. ASLA agrees that the appeal is moot and should be dismissed.
1
 ASLA brought this declaratory judgment action against University of Texas

officials for unlawfully attempting to federally register trademarks by filing false

declarations of sole ownership for marks that they knew were owned by SSI and thus

its partners jointly, including ASLA. This interlocutory appeal arises out of the denial

of the officials’ claim to be immune from any suit to declare their actions unlawful.

While this case was pending on appeal, in an effort to resolve this dispute both

sides negotiated separately to transfer their interest in the subject matter of the lawsuit

to the Green Business Certification Inc. (“GBCI”). The University transferred its

interest in the intellectual property at issue in this dispute as of May 1, 2015. Last week,

contingent on the University’s transfer of its interest, ASLA subsequently transferred

its own interests to GBCI. In accordance with its agreement with GBCI, ASLA then

filed a nonsuit with prejudice of this lawsuit.1

ASLA agrees that, with the divestment of both side’s interest in the intellectual

property and the filing of the nonsuit, the case is now moot and should be dismissed.

“When the dispute that once existed between the parties is resolved by external events,

the case becomes moot and any opinion becomes advisory.” 6 Roy W. McDonald &

Elaine A. Carlson, Tex. Civ. Prac. §33:6 (2d ed. 2014). When a plaintiff to a declaratory

judgment action divests itself in ownership of the property at issue in in the case, any

opinion issued would be advisory, and the appeal is moot. Harris v. Texas Vending

1
A true and correct file-marked copy of ASLA’s May 15, 2012 Notice of Nonsuit with Prejudice is
attached as Tab A.

2
Comm’n, 486 S.W.2d 623, 624 (Tex. App.—Austin 1972, no writ). When a party

nonsuits a cause of action during an interlocutory appeal from a denial of a claim for

governmental immunity, the court should vacate the underlying trial court’s orders and

dismiss the appeal. Houston Mun. Emps. Pension Sys. v. Ferrell, 248 S.W.3d 151, 156-57

(Tex. 2007). Here, because ASLA has divested its interest in the subject property and

filed for nonsuit, the correct procedure is for the Court to dismiss the appeal.

CONCLUSION

For these reasons, ASLA agrees and asks the Court to vacate the trial court’s

underlying order and dismiss this appeal as moot. All costs should be taxed against the

party that has incurred them.

3
Dated: May 18, 2015 Respectfully submitted,

By: /s/Kurt Kuhn_____________
Kurt Kuhn
State Bar No. 24002433
Lisa Bowlin Hobbs
State Bar No. 24026905
KUHN HOBBS PLLC
3307 Northland Drive, Suite 310
Austin, Texas 78731-4946
(512) 476-6005
(512) 476-6002 (fax)
kurt@kuhnhobbs.com
lisa@kuhnhobbs.com

COUNSEL FOR APPELLEES

CERTIFICATE OF SERVICE

I hereby certify that I served a copy of this response on counsel of record
electronically, in accordance with the rules on electronic filing on May 18, 2015, as listed
below:

/s/ Kurt Kuhn_________________
Kurt Kuhn

Kristofer S. Monson
Office of the Attorney General
P.O. Box 12548 (MC059)
Austin, Texas 78711-2548
kristofer.monson@texasattorneygeneral.gov

4
Tab A

5
 5/15/2015 1:49:10 PM
Velva L. Price
District Clerk
Travis County
D-1-GN-13-003564
NO. D-1-GN-13-003564

AMERICAN SOCIETY OF IN THE DISTRICT COURT OF
LANDSCAPE ARCHITECTS, INC.
AND THE AMERICAN SOCIETY OF
LANDSCAPE ARCHITECTS'
LIBRARY AND EDUCATION
ADVOCACY FUND, INC.,
INDIVIDUALLY AND ON BEHALF
OF SUSTAINABLE SITES INITIATIVE,
AN UNINCORPORATED
NONPROFIT ASSOCIATION,

Plaintiffs,
TRAVIS COUNTY, TEXAS
VS.

PAUL L. FOSTER, WILLIAM EUGENE
POWELL, R. STEVEN HICKS, NASH
M. HORNE, ROBERT L. STILLWELL,
ALEX M. CRANBERG, WALLACE L.
HALL, JR., BRENDA PEJOVICH,
ERNEST ALISEDA, AND JEFFERY D.
HILDEBRAND, IN THEIR OFFICIAL
CAPACITIES AS REGENTS OF THE
UNIVERSITY OF TEXAS SYSTEM
AND CRAIG WESTEMEIER, IN HIS
OFFICIAL CAPACITY AS
ASSOCIATE ATHLETICS DIRECTOR,

Defendants. 98TH JUDICIAL DISTRICT

PLAINTIFFS' NOTICE OF NONSUIT WITH PREJUDICE

Plaintiffs, American Society of Landscape Architects, Inc. and The American

Society of Landscape Architects' Library and Education Advocacy Fund, Inc., file this

Notice of Nonsuit. Plaintiffs hereby give written notice of their nonsuit of all claims

Plaintiffs' Notice of Nonsuit with Prejudice Page 1
2079472.1
against all parties with prejudice as to refiling of same. All costs should be taxed

against the party incurring same.

Respectfully submitted,

DuBOIS, BRYANT & CAMPBELL, LLP
700 Lavaca Street, Suite 1300
Austin, TX 78701
(512) 457-8000
(512) 457-8008 (Facsimile)

J. David Rowe
State Bar No. 00794564
drowe©dbellp.com

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing document has been served on
the following by fax or electronic service on this 13 day of May, 2015.

Greg Abbott
Daniel T. Hodge
David C. Mattax
Robert O'Keefe
H. Melissa Mather
Assistant Attorney General
Financial Litigation, Tax, and Charitable Trusts Division
P.O. Box 12548
Austin, Texas 78711-2548
Fax: (512) 477-2348
melissa.mather@texasattorneygeneral.gov

J. David Rowe

Plaintiffs' Notice of Nonsuit with Prejudice Page 2
2079472.1