Autozone, Inc. and Autozoners L.L.C. v. Mario Flores

Court of Appeals of Texas·Decided June 3, 2015·No. 04-15-00307-CV·Published

Opinion

ACCEPTED

04-15-00307-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

6/3/2015 12:17:06 PM

KEITH HOTTLE

CLERK

NO. 04-15-00307-CV

IN THE COURT OF APPEALS FILED IN 4th COURT OF APPEALS

FOURTH COURT OF APPEALS DISTRICTSAN ANTONIO, TEXAS SAN ANTONIO, TEXAS 06/3/2015 12:17:06 PM KEITH E. HOTTLE

*** Clerk

AUTOZONE, INC., AND AUTOZONERS, L.L.C., Appellants

V.

MARIO FLORES,

Appellee

***

RESPONSE TO COURT ORDER REGARDING PAYMENT FOR CLERK’S RECORD

***

BRETT REYNOLDS & ASSOCIATES, P.C. THE LAW OFFICE OF Brett T. Reynolds JACQUELINE M. STROH, P.C. State Bar No. 16795500 Jacqueline M. Stroh btreynolds@btrlaw.com State Bar No. 00791747 P. Brook Swilley jackie@strohappellate.com State Bar No. 24041997 10101 Reunion Place, Suite 600 pbswilley@btrlaw.com San Antonio, Texas 78216 1250 N.E. Loop 410, Suite 420 (210) 477-7416 San Antonio, Texas 78209 (210) 477-7466 (telecopier) (210) 805-9799 (210) 805-9654 (telecopier)

ATTORNEYS FOR APPELLANTS

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

On May 29, 2015, the Court issued an Order requiring Appellants

AutoZone, Inc. and AutoZoners, L.L.C. to provide written proof to the Court that

they have paid the clerk’s fee for preparation of the clerk’s record or that they have

made satisfactory payment arrangements with the clerk for its preparation. In

response, the AutoZone Appellants show unto the Court the following.

I. Appellants Filed a Request for Preparation of the Record Requesting that the Clerk Instruct Them When Payment Was Due

On May 15, 2015, the AutoZone Appellants filed their Notice of Appeal

with the Starr County District Clerk and subsequently filed a copy of that notice

with this Court on May 18, 2015.1 Also on May 15, 2015, the AutoZone

Appellants filed a Request for Preparation of the Clerk’s Record with the Starr

County District Clerk. (See Defendants’ Request for Preparation of Clerk’s

Record, a copy of which is attached hereto as Exhibit “A”). Appellants directed

the request to Brendaly Guerrero, the individual identified by Starr County District

Clerk staff to be the person in charge of preparing appellate records for civil cases.

In the body of the record request, Appellants specifically recited the following:

1 The AutoZone Appellants subsequently filed an Amended Notice of Appeal on May 18, 2015 to add a missing attachment to the original notice of appeal. They filed a copy of that Amended Notice of Appeal with the Fourth Court on the same date.

(See Exhibit “A”).

II. Once Informed of the Amount Due, Appellants Forwarded Payment;

and the District Clerk Has Acknowledged Its Receipt

On May 21, 2015, the Thursday before the Memorial Day Holiday weekend,

Ms. Guerrero forwarded a letter to litigation counsel requesting payment for the

clerk’s record in the amount of $400.00. (See Invoice from the Starr County

District Clerk, a copy of which is attached hereto as Exhibit “B”) On May 26,

2015, the day following the Memorial Day Holiday weekend, litigation counsel

issued a check to the Starr County District Clerk in the amount of $400.00 for full

and complete payment of the fee for preparation of the clerk’s record. (See Stub

for Check Issued to Starr County District Clerk, a copy of which is attached hereto

as Exhibit “C”) After having been informed that the district clerk did not receive

the initial payment, litigation counsel issued a second check in the amount of

$400.00 for full and complete payment of the fee for preparation of the clerk’s

record. (See Stub for Second Check Issued to Starr County District Clerk, a copy

of which is attached hereto as Exhibit “D”) On June 2, 2015, the Starr County

District Clerk confirmed receipt of payment in full for preparation of the clerk’s

record and forwarded to litigation counsel a receipt for full payment. (See Receipt

from the Starr County District Clerk, a copy of which is attached hereto as Exhibit

“E”) As a result, the AutoZone Appellants have provided this Court with the

necessary proof demonstrating payment of the fee for preparation and filing of the

clerk’s record with the Court in this appeal. (See also Affidavit of P. Brook

Swilley, attached hereto as Exhibit “F”) The Court should, therefore, retain this

appeal on the Court’s docket.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellants AutoZone, Inc. and

AutoZoners, L.L.C. respectfully request that the Court acknowledgment their

payment of the fee for preparation of the clerk’s record and retain this appeal on

the Court’s docket. Appellants also request such other and further relief to which

they are entitled.

Respectfully submitted,

(210) 805-9654 (telecopier)

By: /s/ Jacqueline M. Stroh Jacqueline M. Stroh

ATTORNEYS FOR APPELLANTS

AUTOZONE, INC. AND AUTOZONERS, L.L.C.

CERTIFICATE OF SERVICE

I certify that a true copy of the foregoing Response was on this 3rd day of

June, 2015, served by in accordance with the Texas Rules of Appellate Procedure

on the following counsel of record:

Jaime M. Lynn jlynn@carlsonattorneys.com Kiara Martinez kmartinez@carlsonattorneys.com THE CARLSON LAW FIRM, P.C. 11606 North Interstate Highway 35 Austin, Texas 78753 -and- 400 West Jasper Road Killeen, Texas 76542 Attorneys for Appellee

/s/ Jacqueline M. Stroh Jacqueline M. Stroh

Filed: 5/15/2015 11:43:13 AM Eloy R. Garcia, District Clerk Starr County, Texas

Brendaly Guerrero

2. Defendants' Original Answer, filed on February 10, 2015;

3. Defendants' Motion to Compel Arbitration, filed on March 12, 2015;

4. Notice of Hearing on Defendants' Motion to Compel Arbitration, signed on March 18, 2015;

5. Plaintiffs Response to Defendants' Motion to Compel Arbitration, filed on March 30, 2015;

6. Defendants' Reply to Plaintiffs Response to Motion to Compel Arbitration, filed on April 10, 2015;

7. Plaintiffs Supplemental Evidence for the Motion to Compel Arbitration Hearing April 13, 2015, filed on April 16, 2015;

8. Defendants' Objection to and Motion to Strike Plaintiffs Supplemental Evidence Submitted in Response to Defendants' Motion to Compel Arbitration, filed on April 16, 2015;

9. Order denying "Defendants' Motion to Compel/Enforce Arbitration," signed on April 27, 2015 ;

10. Defendants' Notice of Appeal, filed May 15, 2015;

11. Correspondence to Mr. Ramiro Hernandez, Official Court Reporter for the 229th Judicial District Court, requesting preparation of the reporter's record, filed May 15, 2015;

12. This Request for Preparation of Clerk's Record, filed May 15, 2015.

The Defendants hereby make satisfactory arrangements to pay for the record

pursuant to TEX. R. APP. P. 35.3(a)(2) by offering to pay for the record's preparation,

including payment of a deposit prior to preparation, immediately upon notification and

request by the Starr County District Clerk's office. Defendants hereby reserve their right

to request any additional portion pursuant to TEX. R. APP. P. 34.S(c).

The record is due to be filed with the Fourth Court of Appeals, sitting in San

Antonio, no later than May 27, 2015. See TEX. R. APP. P. 35.l(b); see also TEX. R. APP.

P. 4.l(a). Should the district clerk need any assistance with this Request for Preparation

of the Clerk's Record, and/or if any of the items requested above cannot be located, the

Defendants request that the district clerk contact them through their counsel listed below

pursuant to TEX. R. APP. P. 34.S(h).

Respectfully submitted,

Brett T. Reynolds State Bar No. 16795500 btreynolds@btrlaw.com P. Brook Swilley State Bar No. 24041997 pbswilley@btrlaw.com BREIT REYNOLDS & ASSOCIATES, P .C. 1250 N.E. Loop 410, Suite 420 San Antonio, Texas 78209 (210) 805-9799 (210) 805-9654 (telecopier)

By: Isl P. Brook Swilley P. Brook Swilley

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