**CAUSE NO. 03**

**- 14** 

**- 00725** 

**- CV** 

IN THE

THIRD COURT OF APPEALS

AUSTIN, TEXAS

GEORGE GREEN

Appellant

VS.

PORT OF CALL HOMEOWNE RS ASSOCIATION, RANDOLPH HARIG,

PHILLIP JACOBS, JOHN ROSS BUCH HOLTZ AND RICHARD PAT

MCELROY

Appellee s

On Appeal from the

33 RD DISTRICT COURT

of LLANO COUNTY, TEXAS

**APPELLEES’ REPLY IN SUPPORT OF THE**  **MOTION**

**TO DISMISS**  **BECAUSE OF MOOTNESS**

Brantley Ross Pringle, Jr.

State Bar No. 16330001

rpringle@2w

- g.com

Heidi A. Coughlin

State Bar 24059615

hcoughlin@w

- g.com

Mike Thompson, Jr.

State Bar No. 19898200

mthompson@w

- g.com

Wright & Greenhill, P.C

. 221 W. 6th Street, Suite 1800

Austin, Texas 78701

512/476

- 4600

512/476

- 5382 (Fax)

Attorneys for Appellees ACCEPTED

03-14-00725-CV

4311722

THIRD COURT OF APPEALS

AUSTIN, TEXAS

2/27/2015 11:20:28 AM

JEFFREY D. KYLE

CLERK- 2

- **CAUSE NO. 03**

**- 14** 

**- 00725** 

**- CV** 

IN THE

THIRD COURT OF APPEALS

AUSTIN, TEXAS

GEORGE GREEN

Appellant

VS.

PORT OF CALL HOMEO WNERS ASSOCIATION, RANDOLPH HARIG,

PHILLIP JACOBS, JOHN ROSS BUCHHOLTZ AND RICHARD PAT

MCELROY

Appellee s

On Appeal from the

33 RD DISTRICT COURT

of LLANO COUNTY, TEXAS

TO THE HONORABLE THIRD COURT OF APPEALS:

**NOW COME** PORT OF CALL HOMEOWNERS ASSOCIATION,

RANDOLPH HARIG , PHILLIP JACOBS, JOHN ROSS BUCH HOLTZ AND

RICHARD PAT MCELROY (“ Appellee s ”), filing their Reply in Support of the

Motion to Dismiss Appellant’s Appeal Because of Mootness

, and would show unto

this Court as fol lows :

**I**

**.**

**ARGUMENT AND AUTHORITIES** 

1. Appellant sought to cha llenge the trial court’s order control ling discovery in

that court, claiming that it was an injunction . (Appellant s ’ Response p . 4)

However, properly understood, t he original o rder the Appella nt has sought to

appeal is a discovery order. Wood v. Moriarty , 940 S.W.2d 359 (Tex. App.

—- 3

- Dallas 1997, no pet ). As a discovery order, it is inherently interlocutory and not

subject to interlocutory appeal

. Velez v. De Lara , 905 S.W.2d 43, 45 (Tex. App.

—

S an Antonio 1995, no writ ) . More importantly, the trial court vacated the order

complained of . ( Supp. CR 4 ) Appellant agree s that “without more, the Trial Court

had jurisdiction to vacate the Second Order and that the appeal would be moot.”

(Appellant ’s Response p. 6) He claims to have “more”. However, properly

understood, Appellant has no exception here to avoid the rule that a vacated order

moots the appeal of that order. In Re Campbell , 106 S.W.3d 788 (Tex.App

— Texarkana 2003). Therefore, this cour t is without jurisdiction to consider the

appeal, which should be dismissed for mootness.

2. Despite the trial court action vacating the order he complained, Appellant

now seeks extraordinary relief of another order. (Appellant’s Response p. 3)

Assumi ng arguendo, Appellant has a basis to urge an appeal of the discovery order

prepared and entered after the appealed order was vacated, he should file a new

notice of intent to appeal

. Tex. R. App. Pro. 25.1

. Moreover , he can seek review of

the discovery o rder at the district court , where the trial judge , who is managing the

case and is familiar with the situation

, retains jurisdiction to do just that.

**PRAYER**

WHEREFORE, PREMISES CONSIDERED, Appellee s pray that the Court

of Appeals for the Third District of Texas at Austin dismiss this appeal because

there is no longer an issue in controver sy and for further relief that they may be

justly entitled to at law or in equity

.- 4

- Respectfully submitted,

WRIGHT & GREENHILL, P.C.

221 W. 6th Street, Suite 1800

Aust in, Texas 78701

512/476

- 4600

512/476

- 5382 (Fax)

rpringle@w

- g.com

hcoughlin@w

- g.com

mthompson@w

- g.com

/s/ Mike Thompson , Jr

. By:

Brantley Ross Pringle, Jr.

State Bar No. 16330001

Heidi A. Coughlin

State Bar No. 24059615

Mike Thompson, Jr.

State Bar No. 19898200

ATTORNEYS FOR APPELLEES

PORT OF CALL HOMEOWNERS

ASSOCIATION, RANDOLPH

HARIG, PHILLIP JA COBS, JOHN

ROSS BUCHHOLTZ AND RICHARD

PAT MCELROY

**NOTICE OF ELECTRONIC FILING**

The undersigned counsel c ertifies that on the 27 th day of February , 2015 , he

has electronically filed the foregoing document with the Third Court of Appeals

Austin, Texas, Clerk’s Office using the electronic filing system through ProDoc

efiling2 and counsel will send notification of such filing to Mr. David Junkin and

Mr. L. Hayes Fuller, III.- 5

- **CERTIFICATE OF SERVICE**

I hereby certify that a true and correct copy of the above and foregoing has

been served on the following via facsimile or certified mail, return receipt

requested, in accordance with the Texas Rul es of Civil Procedure, on this 27 th day

of February , 2015.

David Junkin

LAW OFFICE OF DAVID JUNKIN

P. O. Bo x 2910

Wimberley, TX 78676

L. Hayes Fuller, III

NAMAN HOWELL SMITH & LEE, P.L.L.C

400 Austin Avenue, Suite 800

P. O. Box 1470

Waco, TX 75703

- 1470

/s/ Mike Thompson , Jr.

Brantley Ross Pringle, Jr.

Heidi Coughlin

Mike Thompson, Jr.