Charles Ronald Wade v. Harris County, Harris County Department of Education, Port of Houston Authority of Harris County, Harris County Flood Control District, Harris County Hospital District, City of Houston, Houston Independent School District, and Houston Community College Sy
Opinion
ACCEPTED
01-15-00155-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/29/2015 7:21:10 AM
CHRISTOPHER PRINE
CLERK
COURT OF APPEAL FOR THE
FIRST DISTRICT AT HOUSTON FILED IN
CHARLES WADE, § 1st COURT OF APPEALS Appellant, § HOUSTON, TEXAS § 5/29/2015 7:21:10 AM v. § APPELLATE CASE NUMBER CHRISTOPHER A. PRINE
§ 01-15-00155-CV Clerk HARRIS COUNTY § Appellee. §
AMENDED RESPONSE TO COURT NOTICE OF 05/14/15 AND/OR RESPONSE TO APPELLEE MOTION TO DISMISS To The Honorable Judge:
COMES NOW CHARLES WADE, Appellant in this cause and requests that he be allowed to proceed on appeal in forma pauper and in response to the Court’s Notice of May 14, 2015 and response to Appellee Motion to dismiss for cause would show the Court as follows:
APPELLANT’S RESPONSE TO MOTION TO DISMISS
A court of appeals has jurisdiction over any appeal where the appellant files an instrument that `was filed in a bona fide attempt to invoke appellate court jurisdiction and Appellant in this cause of action surely has demonstrated that. Appellant filed several Motions that should and can be considered as bona fide attempt to invoke appellate court jurisdiction. Further the rules of appellate procedure, as embodied by rule 83 and rule 2(b), favor a policy of having the Texas courts of appeals address cases on their merits, rather than allowing the courts to close their doors to appellants who, through no fault of their own, fail to find their way successfully through the labyrinth of procedure. Sanchez v. State, 885 S.W.2d 444, 446 (Tex .App — Corpus Christi 1994, no pet.) (Yanez, J.).
Appellant thought filing the Notice of Appeal should not be filed until the Judge had made a ruling on Appellant Motion for New Trial. Appellant belief was not deliberate or intentional and appellant now rely upon interpreting former Rule 41 (a)(2) and holding that reasonable explanation is defined as plausible explanation showing that failure to timely file was not deliberate or intentional. Garcia v. Kastner Farms, Inc., 774 SW 2d 668 - Tex: Supreme Court 1989.
Appellant Further states there is no harm, no prejudice, and no delay in permitting appellate review in this cause of action. CALCE II v. DORADO EXPLORATION, INC., Tex: Court of Appeals, 5th Dist. 2010.
1. INTRODUCTION
1. On July 11, 2014, Appellant filed a Request for a Jury Trial (Exhibit 1) and the Request was denied at Trial on July 16, 2014. On July 11, 2014, Appellant also filed a Motion for Continuance and Objection and filed Proposed Order Granting Motion for Continuance (Exhibit 2 and 2(a)) and the Tax Master also, denied this motion in open Court at the Trial on July 16, 2014.
2. Appellant filed a Verified Petition for Temporary Injunction, complete with Exhibits (Exhibit 3) on July 10, 2014, and was told by court personnel (Harris County District Court Clerks in District Court 295th) that there was no Judge available to hear the Temporary Injunction. Furthermore, there was no mention of this Temporary Injunction at the Trial of July 16, 2014, and no action at all was taken on the Verified Petition for Temporary Injunction (see Exhibit 3)1 . At
1 All Exhibits that are attached to this Response were downloaded from Chris Daniel, Harris County District Clerk online search http://www.hcdistrictclerk.com/eDocs/Public/Search.aspx and the dates various pleading were filed and the Exhibits, where there is corruption, this is just the way the document are found on the online records. Appellant has nothing to do with this corruption. The corrupted parts including the date filed are unreadable and some of the exhibits that were file with various pleading are not readable either but attached for the record. Exhibits are attached just as they are in the Harris County Clerk Office online.
this point Appellant would like to state that the Harris County Tax Court is a labyrinth of procedure by any standard of measurement for a Pro Se pleader, even an experience Attorney if they don’t practice in this area of the law on a regular basic. Sanchez v. State, Supra, also see Garcia v. Kastner Farms, Inc., 774 SW 2d 668 - Tex: Supreme Court 1989.
3. After filing my notice of appeal on July 27, 2014 (Exhibit 4), four days before Judgement was actually signed by the Honorable Caroline Baker, Judge of Harris County District Court 295th, the Court that referred Appellant’s Tax Law Suit to Tax Master Court, in which the Honorable Kelli Hamilton, Tax Master Judge rendered Judgement on July 16, 2014. Notice of Appeal was filed with 295th District Court exactly ten days after the Tax Master rendered Judgement, however Judge Baker did not sign the Judgement until four days later, after Notice of Appeal had been filed.
4. On July 28, 2014, Appellant filed a Motion for New Trial (Exhibit 5), Affidavit in Support of the Motion for new Trial (Exhibit 5), Exhibit “A” Adverse Possession Affidavit, and Order for New Trial (Exhibit 5 (A)). Further, Appellant filed several additional motions including a Notice of Amended Motion for New Trial with an Oral Hearing on September 1, 2014. Appellant make mention of this Amended Motion for New Trial because this is part of Appellant evidence, grounds and arguments presented, so that this Honorable Court should not Dismiss this Appeal for lack of jurisdiction, because Appellant truly believed he had time to file his Notice of Appeal after Judge Baker made her ruling on the motion for new trial, and when Appellant received the Order Denying Motion for New Trial Appellant filed Notice of Appeal. Heritage Life Ins. Co. v. Heritage Group Holding Corp., 751 S.W.2d 229 (Tex. App.— Dallas 1988, writ denied). Appellant did not fail to pay: (a) the appellate filing fee or (b) for the clerk’s records, because Appellant had filed Affidavit of inability to pay court cost in the Trial Court (Exhibit 3, page 12). Home Ins. Co. v. Espinoza, 644 S.W.2d 44 (Tex. Civ. App.—Corpus Christi 1982, writ ref'd n.r.e.).
5. On January 15, 2015, Appellant received ORDER DENYING MOTION FOR NEW TRIAL SIGNED (Exhibit 6) and upon receiving this Order, Appellant filed his Notice of Appeal knowing and believing that he had filed a timely appeal, even up until the Court mailed Notice of May 14, 2015, and Appellees filed there Motion to Dismiss on May 14, 2015.
II. ARGUMENT & AUTHORITY
Court of Appeal Jurisdiction
1. Appellant has demonstrated that any error in timely filing Notice of Appeal is bit more than the result of inadvertence, mistake, or mischance. Bennett v. BROOCKS BAKER & LANGE, LLP, Tex: Court of Appeals, 1st Dist. 2014. Appellant file various motion because Appellant feel to this point the evidence has not been heard and the Court should hear this appeal on the merits rather than allowing the courts to close their doors because of Appellant failure to find the way successfully through the labyrinth of procedure. Sanchez v. State, 885 S.W.2d 444, 446 (Tex .App.— Corpus Christi 1994, no pet.) (Yanez, J.).
2. Appellant is Pro Se, however if the Court will give Appellant a chance to present this cause on the merit and hear this Appeal, Appellant feel that the injustice to this point will be reversed. Appellant ask this Court to recognize that some courts of appeals had previously accepted jurisdiction in such cases under the "procedural irregularity” exception to Rule 83. The court, applying Rule 83,2 held that the late filing of a notice of appeal within the fifteen-day grace period
2 "A judgment shall not be affirmed or reversed or an appeal dismissed for defects or irregularities, in appellate procedure, either inform or substance, without allowing a reasonable time to correct or amend such defects or irregularities provided the court may make no enlargement of time for filing the transcript and statement of facts except pursuant to paragraph (c) of Rule 54 and except that in criminal cases late filing of the transcript or statement of facts may be permitted on a showing that otherwise the appellant may be deprived of effective assistance of counsel." Tex. R. App. P. 83.
Free access — add to your briefcase to read the full text and ask questions with AI
Charles Ronald Wade v. Harris County, Harris County Department of Education, Port of Houston Authority of Harris County, Harris County Flood Control District, Harris County Hospital District, City of Houston, Houston Independent School District, and Houston Community College Sy (Charles Ronald Wade v. Harris County, Harris County Department of Education, Port of Houston Authority of Harris County, Harris County Flood Control District, Harris County Hospital District, City of Houston, Houston Independent School District, and Houston Community College Sy) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.