Berkel & Company Contractors, Inc. v. Tyler Lee and Leigh Ann Lee, Individually and as Next Friend of Sydney Rose Lee, Minor

ACCEPTED
14-15-00787-CV
FOURTEENTH COURT OF APPEALS
Appellate Docket Number: 14-15-00787-CV HOUSTON, TEXAS
10/21/2015 4:28:19 PM
CHRISTOPHER PRINE
Appellate Case Style: Berkel & Company Contractors, Inc. CLERK

Vs.
Tyler Lee and Leigh Ann Lee Individually and as Next Friend of Sydney Rose Lee, A Minor

Companion Case No.:
FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
10/21/2015 4:28:19 PM
Amended/corrected statement: DOCKETING STATEMENT (Civil) CHRISTOPHER A. PRINE
Clerk
Appellate Court:14th Court of Appeals
(to be filed in the court of appeals upon perfection of appeal under TRAP 32)

I. Appellant II. Appellant Attorney(s)
Person Organization (choose one) Lead Attorney
Organization Name: Berkel & Company Contractors, Inc. First Name: Thomas
First Name: Middle Name: C.
Middle Name: Last Name: Wright
Last Name: Suffix:
Suffix: Law Firm Name: Wright & Close, LLP

Pro Se: Address 1: One Riverway, Suite 2200
Address 2:
City: Houston
State: Texas Zip+4: 77056
Telephone: 713-572-4321 ext.
Fax: 713-572-4321
Email: wright@wrightclose.com
SBN: 22059400

I. Appellant II. Appellant Attorney(s)
Person Organization (choose one) Lead Attorney
First Name: Jessica
First Name: Middle Name: Z.
Middle Name: Last Name: Barger
Last Name: Suffix:
Suffix: Law Firm Name: Wright & Close, LLP

Pro Se: Address 1: One Riverway, Suite 2200
Address 2:

Page 1 of 12
 City: Houston
State: Texas Zip+4: 77056
Telephone: 713-572-4321 ext.
Fax: 713-572-4320
Email: barger@wrightclose.com
SBN: 24032706

I. Appellant II. Appellant Attorney(s)
Person Organization (choose one) Lead Attorney
First Name: Garrett
First Name: Middle Name: A.
Middle Name: Last Name: Gibson
Last Name: Suffix:
Suffix: Law Firm Name: Wright & Close, LLP

Pro Se: Address 1: One Riverway, Suite 2200
Address 2:
City: Houston
State: Texas Zip+4: 77056
Telephone: 713-572-4321 ext.
Fax: 713-572-4320
Email: gibson@wrightclose.com
SBN: 24069024

III. Appellee IV. Appellee Attorney(s)
Person Organization (choose one) Lead Attorney
First Name: Russell
First Name: Tyler Lee and Leigh Ann Lee, Individually and as Middle Name: S.
Middle Name: Last Name: Post
Last Name: Suffix:
Suffix: Law Firm Name: Beck Redden LLP
Pro Se: Address 1: One Houston Center
Address 2: 1221 McKinney Street, Suite 4500
City: Houston
State: Texas Zip+4: 77010
Telephone: 713-951-6292 ext.
Fax: 713-951-3720
Email: rpost@beckredden.com
SBN: 00797258

III. Appellee IV. Appellee Attorney(s)
Person Organization (choose one) Lead Attorney
First Name: Kurt
First Name: Middle Name: B.
Page 2 of 12
Middle Name: Last Name: Arnold
Last Name: Suffix:
Suffix: Law Firm Name: Arnold & Itkin, LLP
Pro Se: Address 1: 6009 Memorial Drive
Address 2:
City: Houston
State: Texas Zip+4: 77007
Telephone: 713-222-3800 ext.
Fax: 713-222-3850
Email: e-service@arnolditkin.com
SBN: 24036150

Page 3 of 12
V. Perfection Of Appeal And Jurisdiction

Nature of Case (Subject matter or type of case): Personal Injury

Date order or judgment signed: September 15, 2015 Type of judgment: Jury Trial
Date notice of appeal filed in trial court: September 16, 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): Yes No
If yes, please specify statutory or other basis on which appeal is accelerated:

Parental Termination or Child Protection? (See TRAP 28.4): Yes ■ No

Permissive? (See TRAP 28.3): Yes No
If yes, please specify statutory or other basis for such status:

Agreed? (See TRAP 28.2): Yes No
If yes, please specify statutory or other basis for such status:

Appeal should receive precedence, preference, or priority under statute or rule: Yes No
If yes, please specify statutory or other basis for such status:

Does this case involve an amount under $100,000? Yes No
Judgment or order disposes of all parties and issues: Yes No
Appeal from final judgment: Yes No
Does the appeal involve the constitutionality or the validity of a statute, rule, or ordinance? Yes No

VI. Actions Extending Time To Perfect Appeal

Motion for New Trial: Yes No If yes, date filed: October 13, 2015
Motion to Modify Judgment: Yes No If yes, date filed:
Request for Findings of Fact Yes No If yes, date filed:
and Conclusions of Law:
Yes No If yes, date filed:
Motion to Reinstate:
Yes No If yes, date filed:
Motion under TRCP 306a:
Other: Yes No
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: Yes No If yes, date filed:

Date ruling on contest due:

Ruling on contest: Sustained Overruled Date of ruling:

Page 4 of 12
VIII. Bankruptcy

Has any party to the court's judgment filed for protection in bankruptcy which might affect this appeal? Yes No
If yes, please attach a copy of the petition.

Date bankruptcy filed: Bankruptcy Case Number:

IX. Trial Court And Record

Court: 149th Judicial District Court Clerk's Record:
County: Brazoria Trial Court Clerk: District County
Trial Court Docket Number (Cause No.): 75576-CV Was clerk's record requested? Yes No
If yes, date requested: September 17, 2015
Trial Judge (who tried or disposed of case): If no, date it will be requested:
First Name: Terri Were payment arrangements made with clerk?
Middle Name: Tipton Yes No Indigent
Last Name: Holder
(Note: No request required under TRAP 34.5(a),(b))
Suffix:
Address 1: 111 E. Locust, Room 214A
Address 2 :
City: Angelton
State: Texas Zip + 4: 77515
Telephone: 979-864-1261 ext.
Fax: 979-864-1061
Email:

Reporter's or Recorder's Record:

Is there a reporter's record? Yes No
Was reporter's record requested? Yes No

Was there a reporter's record electronically recorded? Yes No
If yes, date requested: September 18, 2015

If no, date it will be requested:
Were payment arrangements made with the court reporter/court recorder? Yes No Indigent

Page 5 of 12
 Court Reporter Court Recorder
Official Substitute

First Name: Robin
Middle Name:
Last Name: Rios
Suffix:
Address 1: 111 E. Locust, Room 241A
Address 2:
City: Angelton
State: Texas Zip + 4: 77515
Telephone: 979-864-1261 ext.
Fax: 979-864-1061
Email:

Court Reporter Court Recorder
Official Substitute

First Name: Jill
Middle Name:
Last Name: Friedrichs
Suffix:
Address 1: 111 E. Locust, Room 201
Address 2:
City: Angelton
State: Texas Zip + 4: 77515
Telephone: ext.
Fax:
Email: Jill@brazoria-county.com

Page 6 of 12
 Court Reporter Court Recorder
Official Substitute

First Name: Minnie
Middle Name:
Last Name: Cadena
Suffix:
Address 1: 111 E. Locust, Room 312A
Address 2:
City: Angelton
State: Texas Zip + 4: 77515
Telephone: ext.
Fax:
Email: minniec@brazoria-county.com

Court Reporter Court Recorder
Official Substitute

First Name: Tamra
Middle Name:
Last Name: Parks
Suffix:
Address 1: Parks Reporting Service
Address 2: 13414 Travis Heights
City: Houston
State: Texas Zip + 4: 77059
Telephone: 832-217-0639 ext.
Fax:
Email: tamraparks@gmail.com

X. Supersedeas Bond
Supersedeas bond filed: Yes No If yes, date filed: September 30, 2015

Will file: Yes No

XI. Extraordinary Relief

Will you request extraordinary relief (e.g. temporary or ancillary relief) from this Court? Yes No
If yes, briefly state the basis for your request:

XII. Alternative Dispute Resolution/Mediation (Complete section if filing in the 1st, 2nd, 4th, 5th, 6th, 8th, 9th, 10th, 11th, 12th, 13th,
or 14th Court of Appeal)
Should this appeal be referred to mediation?
Yes No
Page 7 of 12
If no, please specify:Post-trial court-ordered mediation has already been attempted.
Has the case been through an ADR procedure? Yes No
If yes, who was the mediator? Judge Kim Parrott
What type of ADR procedure? Mediation
At what stage did the case go through ADR? Pre-Trial Post-Trial Other

If other, please specify:

Type of case? Personal Injury
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):
Workers' Compensation bar, election of remedies, intentional injury exception

How was the case disposed of? Trial
Summary of relief granted, including amount of money judgment, and if any, damages awarded. Money Judgment
If money judgment, what was the amount? Actual damages: $35,443,006.00
Punitive (or similar) damages: $8,500,000.00
Attorney's fees (trial): $0.00
Attorney's fees (appellate): $0.00
Other:
If other, please specify:

Will you challenge this Court's jurisdiction? Yes No
Does judgment have language that one or more parties "take nothing"? Yes No
Does judgment have a Mother Hubbard clause? Yes No
Other basis for finality?
Rate the complexity of the case (use 1 for least and 5 for most complex): 1 2 3 4 5
Please make my answer to the preceding questions known to other parties in this case. Yes No
Can the parties agree on an appellate mediator? Yes No
If yes, please give name, address, telephone, fax and email address:
Name Address Telephone Fax Email

Languages other than English in which the mediator should be proficient:
Name of person filing out mediation section of docketing statement: Garrett A. Gibson

Page 8 of 12
XIII. Related Matters
List any pending or past related appeals before this or any other Texas appellate court by court, docket number, and style.

Docket Number: 14-15-00614 Trial Court: 149th District Court of Brazoria Coun

Style: Maxim Crane Works, LP

Vs.
Berkel & Company Contractors, Inc.

Page 9 of 12
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 financial 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 charging 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 Listserv to its pool of volunteer appellate
attorneys.
Do you want this case to be considered for inclusion in the Pro Bono Program? Yes 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 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).
Workers' Comp bar, exclusive remedies defense, intentional injury exception, gross negligence; de novo and sufficiency of the evidence.

XV. Signature

Signature of counsel (or pro se party) Date: October 21, 2015

Printed Name: Jessica Z. Barger State Bar No.: 24032706

Electronic Signature: /s/ Jessica Z. Barger
(Optional)

Page 10 of 12
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 October 21, 2015 .

Signature of counsel (or pro se party) Electronic Signature: /s/ Jessica Z. Barger
(Optional)

State Bar No.: 24032706
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: October 21, 2015
Manner Served: eServed

First Name: Russell

Middle Name:
Last Name: Post
Suffix:
Law Firm Name: Beck Redden LLP
Address 1: One Houston Center
Address 2: 1221 McKinney Street, Suite 4500

City: Houston
State Texas Zip+4: 77010
Telephone: 713-951-6292 ext.
Fax: 713-951-3720

Email: rpost@beckredden.com

If Attorney, Representing Party's Name:
Please enter the following for each person served:

Page 11 of 12
Date Served: October 21, 2015
Manner Served: eServed

First Name: Kurt

Middle Name: B.
Last Name: Arnold
Suffix:
Law Firm Name: Arnold & Itkin, LLP
Address 1: 6009 Memorial Drive
Address 2:
City: Houston
State Texas Zip+4: 77007
Telephone: 713-222-3800 ext.
Fax: 713-222-3850

Email: e-service@arnolditkin.com

If Attorney, Representing Party's Name:

Page 12 of 12