ACCEPTED 01-15-01044-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 12/17/2015 2:59:12 PM CHRISTOPHER PRINE CLERK
FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 12/17/2015 2:59:12 PM Lance L. Livingston CHRISTOPHER A. PRINE llivingston@feesmith.com Direct Dial (972) 980-3266 Clerk
December 17, 2015
Via E-filing Court of Appeals First District 301 Fannin Street Houston, Texas 77002-2066
Re: Court of Appeals Number: 01-15-01044-CV Trial Court Case Number: 2013-35800
Dear Clerk:
On behalf of Appellant Don Prochaska, by the filing of this letter, I am paying the required $205 filing fee to prosecute the above referenced appeal as required in the attached letter.
Thank you for your attention to the above. If you have any questions, please feel free to contact me.
Very truly yours,
FEE, SMITH, SHARP & VITULLO, L.L.P.
Lance L. Livingston Attorney
LLL/MS
cc: All Counsel of Record:
Patrick Zummo pzummo@zoomlaw.com; docket@zoomlaw.com Ananda N. Chaudhuri achaudhuri@fleischmanlawfirm.com Keith M. Fleischman keith@fleischmanlawfirm.com FILE COPY
SHERRY RADACK CHRISTOPHER A. PRINE CHIEF JUSTICE CLERK OF THE COURT
TERRY JENNINGS JANET WILLIAMS EVELYN KEYES CHIEF STAFF ATTORNEY LAURA CARTER HIGLEY JANE BLAND MICHAEL MASSENGALE Court of Appeals PHONE: 713-274-2700 FAX: 713-755-8131 HARVEY BROWN REBECA HUDDLE First District www.txcourts.gov/1stcoa.aspx RUSSELL LLOYD 301 Fannin Street JUSTICES Houston, Texas 77002-2066
December 10, 2015
Gregg S. Weinberg Clinton J. Echols Roberts Markel Weinberg PC Rymer, Moore, Jackson & Echols, P.C. 2800 Post Oak Blvd 57th Floor 2801 Post Oak Blvd., Ste 250 Houston, TX 77056 Houston, TX 77056 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *
Anthony Leonard Vitullo Frank Carroll III Fee,Smith,Sharp & Vitullo LLP Roberts Markel Weinberg Butler Hailey PC Three Galleria Tower 2800 Post Oak Bvd, 57th Floor 13155 Noel Rd Ste 1000 Houston, TX 77056 Dallas, TX 75240 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL * Lance Livingston Jonathan Azano Fee, Smith, Sharp & Vitullo, LLP Fee, Smith, Sharp & Vitullo,LLP Three Galleria Tower Three Galleria Tower Dallas, TX 75240 13155 Noel Rd Ste 1000 * DELIVERED VIA E-MAIL * Dallas, TX 75240 * DELIVERED VIA E-MAIL * Patrick Zummo Law Offices of Patrick Zummo John L. Malesovas 3900 Essex Lane Ste 800 Malesovas Law Firm Houston, TX 77027 816 Congress Ste 1265 * DELIVERED VIA E-MAIL * Austin, TX 78701 * DELIVERED VIA E-MAIL *
RE: Court of Appeals Number: 01-15-01044-CV Trial Court Case Number: 2013-35800
Style: Don Prochaska v. Johnathan Feldman
GENERAL INFORMATION
On December 08, 2015, a letter of assignment from the 334th District Court trial-court clerk and a copy of the notice of appeal filed by Don Prochaska in the trial court was received and docketed as Cause Number 01-15-01044-CV. This Notice contains information about some of the rules and procedures that govern prosecution of an appeal pending before the First Court of Appeals. FILE COPY
Texas Rule of Appellate Procedure 9.6 requires parties and counsel to communicate about a pending appeal only through the Clerk’s office and they may not communicate with either the justices or their staff about a case. It is also improper to send a document to the Court about an appeal unless a copy of it is served on all other parties to the appeal at the same time. See TEX. R. APP. P. 9.5(d), (e).
Effective January 1, 2014, all attorneys in civil cases and criminal cases must electronically file all documents (except a document submitted under seal or subject to a motion to seal) through the EfileTexas.gov electronic filing system. A party representing themselves pro se (without an attorney) in a civil case, is encouraged to e-file documents, but is not required to do so. Electronically filed documents must conform to TEX. R. APP. P. 9.4 and must be completed through EfileTexas.gov, http://www.efiletexas.gov. Electronically filed briefs must comply with TEX. R. APP. P. 9.4 and with the Texas Supreme Court's Redaction Guidelines found at http://www.supreme.courts.state.tx.us/ebriefs/RedactionGuidelines.pdf.
INFORMATION ABOUT THE FILING FEE
Unless an appellant is exempt from paying filing fees or has been declared indigent, the appellant must pay the required $205 filing fee to prosecute the appeal. See TEX. R. APP. P. 5 (requiring payment of fees in civil cases unless excused) and 20.1 (listing requirements for establishing indigence).
This letter is NOTICE to the appellant that the required filing fee must be paid within twenty (20) days of the date of this notice. A party who files electronically may pay by credit card through the Tex.gov process. Or, a party may pay with cash in person at the Clerk's office, 301 Fannin, Houston, Texas 77002. A filer may also pay by (1) a money order, cashier’s check, or certified check issued by a U.S. financial institution or (2) a money order issued by the United States Postal Service. A money order or a check must be made payable to “Clerk, First Court of Appeals.”
There is only one $205 filing fee for each appellate case, regardless of how many appellants there may be, or if multiple notices of appeal are filed. Multiple appellants who are not indigent or exempt must determine amongst themselves how the filing fee will be paid.
INFORMATION ABOUT THE APPELLATE RECORD
This letter is NOTICE to the appellant that the Court may dismiss an appeal for want of prosecution, if the clerk’s record is not filed and it is appellant’s fault. See TEX. R. APP. P. 37.3(b); 42.3. This letter is also NOTICE to the appellant that if it is appellant’s fault that the reporter’s record is not filed, the Court may decide the appeal on those issues or points that do not require a reporter’s record for a decision. See TEX. R. APP. P. 37.3(c). Any motion related to informalities in the manner of bringing this appeal must be filed within thirty (30) days after the appellate record is filed. TEX. R. APP. P. 10.5(a).
2 FILE COPY
Unless an appellant has established indigence under Texas Rule of Appellate Procedure 20.1, the trial-court clerk and court reporter are not required to file the clerk’s and reporter’s records until appellant has paid the required fees to prepare and certify the records, or has made satisfactory arrangements to pay the fees. See TEX. R. APP. P. 35.3(a)(2), (b)(3).
From information currently available, it appears that the trial court signed the final judgment or other appealable order on November 3, 2015. Because the notice of appeal indicates that a post-judgment motion was not filed, unless the Court receives information to the contrary, the trial court clerk is due to file the clerk’s record and the court reporter is due to file the reporter’s record on or before December 17, 2015.
The appellant and/or appellee should inform the Court as soon as possible if (1) this appeal is accelerated or (2) if there is disagreement about (a) the date the trial court signed the final judgment or appealable order or (b) whether a post-judgment motion or request for findings of fact and conclusions of law was timely filed in the trial court.
It is mandatory that both the clerk’s record and the reporter’s record be filed electronically. Both the trial-court clerk and the court reporter are asked to complete the information sheet on the “Forms” page of the Court’s website, http://www.txcourts.gov/1stcoa/practice-before-the-court/forms.aspx, and file it with the Court within ten (10) days of the date of this Notice. The parties do not need to file a motion to extend time to file either the clerk’s record or the reporter’s record.
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ACCEPTED 01-15-01044-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 12/17/2015 2:59:12 PM CHRISTOPHER PRINE CLERK
FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 12/17/2015 2:59:12 PM Lance L. Livingston CHRISTOPHER A. PRINE llivingston@feesmith.com Direct Dial (972) 980-3266 Clerk
December 17, 2015
Via E-filing Court of Appeals First District 301 Fannin Street Houston, Texas 77002-2066
Re: Court of Appeals Number: 01-15-01044-CV Trial Court Case Number: 2013-35800
Dear Clerk:
On behalf of Appellant Don Prochaska, by the filing of this letter, I am paying the required $205 filing fee to prosecute the above referenced appeal as required in the attached letter.
Thank you for your attention to the above. If you have any questions, please feel free to contact me.
Very truly yours,
FEE, SMITH, SHARP & VITULLO, L.L.P.
Lance L. Livingston Attorney
LLL/MS
cc: All Counsel of Record:
Patrick Zummo pzummo@zoomlaw.com; docket@zoomlaw.com Ananda N. Chaudhuri achaudhuri@fleischmanlawfirm.com Keith M. Fleischman keith@fleischmanlawfirm.com FILE COPY
SHERRY RADACK CHRISTOPHER A. PRINE CHIEF JUSTICE CLERK OF THE COURT
TERRY JENNINGS JANET WILLIAMS EVELYN KEYES CHIEF STAFF ATTORNEY LAURA CARTER HIGLEY JANE BLAND MICHAEL MASSENGALE Court of Appeals PHONE: 713-274-2700 FAX: 713-755-8131 HARVEY BROWN REBECA HUDDLE First District www.txcourts.gov/1stcoa.aspx RUSSELL LLOYD 301 Fannin Street JUSTICES Houston, Texas 77002-2066
December 10, 2015
Gregg S. Weinberg Clinton J. Echols Roberts Markel Weinberg PC Rymer, Moore, Jackson & Echols, P.C. 2800 Post Oak Blvd 57th Floor 2801 Post Oak Blvd., Ste 250 Houston, TX 77056 Houston, TX 77056 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *
Anthony Leonard Vitullo Frank Carroll III Fee,Smith,Sharp & Vitullo LLP Roberts Markel Weinberg Butler Hailey PC Three Galleria Tower 2800 Post Oak Bvd, 57th Floor 13155 Noel Rd Ste 1000 Houston, TX 77056 Dallas, TX 75240 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL * Lance Livingston Jonathan Azano Fee, Smith, Sharp & Vitullo, LLP Fee, Smith, Sharp & Vitullo,LLP Three Galleria Tower Three Galleria Tower Dallas, TX 75240 13155 Noel Rd Ste 1000 * DELIVERED VIA E-MAIL * Dallas, TX 75240 * DELIVERED VIA E-MAIL * Patrick Zummo Law Offices of Patrick Zummo John L. Malesovas 3900 Essex Lane Ste 800 Malesovas Law Firm Houston, TX 77027 816 Congress Ste 1265 * DELIVERED VIA E-MAIL * Austin, TX 78701 * DELIVERED VIA E-MAIL *
RE: Court of Appeals Number: 01-15-01044-CV Trial Court Case Number: 2013-35800
Style: Don Prochaska v. Johnathan Feldman
GENERAL INFORMATION
On December 08, 2015, a letter of assignment from the 334th District Court trial-court clerk and a copy of the notice of appeal filed by Don Prochaska in the trial court was received and docketed as Cause Number 01-15-01044-CV. This Notice contains information about some of the rules and procedures that govern prosecution of an appeal pending before the First Court of Appeals. FILE COPY
Texas Rule of Appellate Procedure 9.6 requires parties and counsel to communicate about a pending appeal only through the Clerk’s office and they may not communicate with either the justices or their staff about a case. It is also improper to send a document to the Court about an appeal unless a copy of it is served on all other parties to the appeal at the same time. See TEX. R. APP. P. 9.5(d), (e).
Effective January 1, 2014, all attorneys in civil cases and criminal cases must electronically file all documents (except a document submitted under seal or subject to a motion to seal) through the EfileTexas.gov electronic filing system. A party representing themselves pro se (without an attorney) in a civil case, is encouraged to e-file documents, but is not required to do so. Electronically filed documents must conform to TEX. R. APP. P. 9.4 and must be completed through EfileTexas.gov, http://www.efiletexas.gov. Electronically filed briefs must comply with TEX. R. APP. P. 9.4 and with the Texas Supreme Court's Redaction Guidelines found at http://www.supreme.courts.state.tx.us/ebriefs/RedactionGuidelines.pdf.
INFORMATION ABOUT THE FILING FEE
Unless an appellant is exempt from paying filing fees or has been declared indigent, the appellant must pay the required $205 filing fee to prosecute the appeal. See TEX. R. APP. P. 5 (requiring payment of fees in civil cases unless excused) and 20.1 (listing requirements for establishing indigence).
This letter is NOTICE to the appellant that the required filing fee must be paid within twenty (20) days of the date of this notice. A party who files electronically may pay by credit card through the Tex.gov process. Or, a party may pay with cash in person at the Clerk's office, 301 Fannin, Houston, Texas 77002. A filer may also pay by (1) a money order, cashier’s check, or certified check issued by a U.S. financial institution or (2) a money order issued by the United States Postal Service. A money order or a check must be made payable to “Clerk, First Court of Appeals.”
There is only one $205 filing fee for each appellate case, regardless of how many appellants there may be, or if multiple notices of appeal are filed. Multiple appellants who are not indigent or exempt must determine amongst themselves how the filing fee will be paid.
INFORMATION ABOUT THE APPELLATE RECORD
This letter is NOTICE to the appellant that the Court may dismiss an appeal for want of prosecution, if the clerk’s record is not filed and it is appellant’s fault. See TEX. R. APP. P. 37.3(b); 42.3. This letter is also NOTICE to the appellant that if it is appellant’s fault that the reporter’s record is not filed, the Court may decide the appeal on those issues or points that do not require a reporter’s record for a decision. See TEX. R. APP. P. 37.3(c). Any motion related to informalities in the manner of bringing this appeal must be filed within thirty (30) days after the appellate record is filed. TEX. R. APP. P. 10.5(a).
2 FILE COPY
Unless an appellant has established indigence under Texas Rule of Appellate Procedure 20.1, the trial-court clerk and court reporter are not required to file the clerk’s and reporter’s records until appellant has paid the required fees to prepare and certify the records, or has made satisfactory arrangements to pay the fees. See TEX. R. APP. P. 35.3(a)(2), (b)(3).
From information currently available, it appears that the trial court signed the final judgment or other appealable order on November 3, 2015. Because the notice of appeal indicates that a post-judgment motion was not filed, unless the Court receives information to the contrary, the trial court clerk is due to file the clerk’s record and the court reporter is due to file the reporter’s record on or before December 17, 2015.
The appellant and/or appellee should inform the Court as soon as possible if (1) this appeal is accelerated or (2) if there is disagreement about (a) the date the trial court signed the final judgment or appealable order or (b) whether a post-judgment motion or request for findings of fact and conclusions of law was timely filed in the trial court.
It is mandatory that both the clerk’s record and the reporter’s record be filed electronically. Both the trial-court clerk and the court reporter are asked to complete the information sheet on the “Forms” page of the Court’s website, http://www.txcourts.gov/1stcoa/practice-before-the-court/forms.aspx, and file it with the Court within ten (10) days of the date of this Notice. The parties do not need to file a motion to extend time to file either the clerk’s record or the reporter’s record. See Texas Rules of Appellate Procedure 34.5(b)(1), (c)(2), 35.3(c), and 35.6(b)(1) and Appendix C of the Texas Rules of Appellate Procedure for electronic filing related to preparation of the appellate record.
Parties are encouraged to work together and with the trial court clerk and court reporter to properly designate all necessary items and portions of the testimony to be included in the initial records. The Court generally will not grant a motion to extend time to file a brief because a party requests to supplement the record with an item or portion of the testimony that the party did not timely designate for inclusion in the initial clerk’s record or reporter’s record. See TEX. R. APP. P. 10.5(b), 34.5(c)(1), 34.6(d), 38.6(d).
INFORMATION ABOUT FILING DOCUMENTS
Texas Rule of Appellate Procedure 9.3 controls the number of paper copies and documents filed in paper form. All documents must include a certificate of service. See Tex. R. App. P. 9.5(d), (e). All civil motions must include a certificate of conference, TEX. R. APP. P. 10.1(a)(5), and require a $10 filing fee, unless the movant has established indigence or is exempt from the advance payment of filing fees, e.g., the State or a political subdivision of the State. See TEX. R. APP. P. 5; FEES CIV. CASES B (3); Op. Tex Att’y Gen. No. DM-459 (1997). The Court treats a civil motion requesting multiple types of relief as separate motions and requires a separate $10 filing fee for each motion.
3 FILE COPY
INFORMATION ABOUT THE DOCKETING STATEMENT
An appellant is required to file a docketing statement. See TEX. R. APP. P. 42.3. Until the clerk’s record is filed, the docketing statement is the primary source of accurate information about a newly-filed appeal. The information is used to establish appellate deadlines and to send notices to the correct parties at the correct addresses. The “Forms” section of the Court’s website includes a docketing statement or the appellant may call the Clerk’s office and ask that one be mailed. In this case, the Docketing Statement should be filed within twenty (20) days of the date of this notice.
Section X must be completed if an appellant believes that his/her civil appellate matter may qualify for the Pro Bono Program sponsored and administered solely by the State Bar of Texas (SBOT) and the Houston Bar Association’s Appellate Practice Section (HBA). See the following websites for information: (1) State Bar of Texas Pro Bono Program, First Court of Appeals, http://www.tex-app.org/DrawOnePage.aspx?PageID=82; (2) the Houston Bar Association’s website,http://www.hba.org/services/;and (3) http://www.txcourts.gov/1stCOA, Practice Before the Court, Forms, Civil Docketing Statement.
Section XI of the docketing statement is an optional section that requests information related to potential participation in an alternate dispute resolution process or mediation. The Court strongly encourages the parties to provide this information due to the successful history of alternative dispute resolution/mediation processes, even in cases where such success initially appeared unlikely.
INFORMATION ABOUT BRIEFS
Effective January 1, 2014, all attorneys in civil cases and criminal cases must electronically file all documents (except a document submitted under seal or subject to a motion to seal) through the EfileTexas.gov electronic filing system. A party representing themselves pro se (without an attorney) in a civil case, is encouraged to e-file documents, but is not required to do so. Electronically filed documents must conform to TEX. R. APP. P. 9.4 and must be completed through EfileTexas.gov, http://www.efiletexas.gov. Electronically filed briefs must comply with TEX. R. APP. P. 9.4 and with the Texas Supreme Court's Redaction Guidelines found at http://www.txcourts.gov/media/124902/redactionguidelines.pdf.
INFORMATION ABOUT ATTORNEYS APPEARING BEFORE THE COURT
Texas Rule of Appellate Procedure 6 governs matters related to an attorney’s representation of a party before the Court. Attorneys must promptly notify the Clerk’s office of any change of address or change in designation of the lead counsel for a party. A nonresident attorney who is not a member of the State Bar of Texas must satisfy the requirements for participation in a Texas legal matter found on the Board of Law Examiners’ website http://www.ble.state.tx.us.
4 FILE COPY
INFORMATION ABOUT NOTICES TO PARTIES
Notice must be sent to all parties of any judgment, mandate, or order issued. See Tex. R. App. P. 12.6. If a party is represented by an attorney, notice will be sent to the party’s lead counsel. See TEX. R. APP. P. 9.5(b). Information available to the public about a case may be found on the “Case Information” page of the Court’s website. Parties may sign up for e-mail notices about activity in their case on the “CaseMail” page of the website.
STANDARDS OF APPELLATE CONDUCT
The Court follows the Standards of Appellate Conduct adopted by the Supreme Court of Texas and the Court of Criminal Appeals. All attorneys and parties—including pro se litigants— are expected to fully comply with these standards, as well as all applicable provisions of the Texas Rules of Appellate Procedure, the Texas Disciplinary Rules of Professional Conduct, and the Code of Judicial Conduct. See the “Court Rules” page, “Other Rules Governing Attorneys” of the Texas Supreme Court’s website, http://www.txcourts.gov/supreme.aspx, or call and ask that a copy be mailed to you.
Should you have questions at any time throughout the appellate process of your case, please do not hesitate to call the Clerk's office at 713-274-2700.
Sincerely, Christopher A. Prine, Clerk of the Court
cc: The Honorable Harris County District Clerk's Office - Civil (DELIVERED VIA E-MAIL) Judge 334th District Court (DELIVERED VIA E-MAIL) Court Reporter 334th District Court (DELIVERED VIA E-MAIL) Hon. Olen Underwood (DELIVERED VIA E-MAIL)