Dov Avni Kaminetzky v. Dosohs I, LTD
Opinion
r~—————— r TIT• [HflWIIW Mil I —TT—~—-T*TTTf
FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS
APPEAL No. 14-14-00410-CV NOV 3 0 2015 DOV AVNI KAMINETZKY a/k/a DOV K. AVNI )( Christopher a. prine Appellant )( L CLERK v. )( DOSOHS I, LTD, Appellee )( [APPEAL of 5-15-14 FROM #1997^0590/11 JDC;HARRIS COUNTYJX
APPELLANT DOV K.AVNI's ORIGINAL OPPOSED MOTION TO TAKE JUDICIAL"! OF RECORDS OF #14-14-00410-CV -DISMISSED ON 8-27-15 BY 14COA's "B-3" PANEL and OTHER UNDISPUTABLY CORRECT RECORDS OF THIS APPELLATE COURT PROVING MOVANT'S ALLEGATIONS OF DEPUTY CLERK WARD'S UNLAWFUL ACTS TO DISMISS APPEAL BYTAMPERINGS IN 14C0A RECORDS AND FRAUDS ON "B3" PANEL and MOVANT. THEN RECALL THE "11-6-2015 MANDATE "AND RULE ONAPPELLANT'S PENDING MOTIONS.
AND ALTERNATIVELY IF EITHER FOREGOING MOTION IS DENIED BEFORE COURT'S 2015 TERM ENDS.TREAT THIS MOTION fas supplemented by 11-301 AS ORIGINAL PROCEEDING FOR MANDAMUS
TO THE HONORABLE JUSTICES OF THIS 14th COURT OF APPEALS OF TEXAS. APPELLANT DOV K. AVNI a/k/a DOV AVNI KAMINETZKY ["Dov"] respectfully prays for the taking of judicial notice by the members of this "B-3" panel who were not privy to the tamperings in the record ofthis appeal by deputy Clerk Troy Ward (proven by documents attached here and to Movant's pending motion for extension oftime for rehearing-filed 9-25 .supplemented 9-28-15 in anticipation of10-13-15 delivery of5th Supplemental Clerk Record Dov hasdesignated 9-4-15) Dov asks hon. justices Boyce.Busby and Brown -who unanimously decided on August 27,2015 to dismiss this appeal-acting in total reliance on fraudulent representations of Deputy Chief Clerk TROY D. WARD ["WARD"] who knowingly and willfully omitted from the record of this case important items prior to 8-26-15 rushed setting ofdismissal hearing onnext morning without notice to Dov-to take judicial notice of Ward's unlawful acts,then recall 11-6-15 mandate I. DEPUTY WARD'S UNLAWFUL ACTS PROVEN BELOW MATERIALLY ALTERED THE RECORD ADVERSLY TO DOV (1) omission/deletion of 124 page supplemental clerk record of 5-13-15(!) (2) paying no attention and not referencing any of the other supplemental Clerk Records ordered and paid by Dov.Appellee ordered no record (!) (3) reinstating on his own decision this appeal-abated since May 7.2015 without judicial review -as this court customarily does after abatement and based on 10 page selective skinny record with 325 pages missing. Movant attaches and incorporates here appendix with case records.relevant appellate rules and authorities and will supplement them by Monday, 11-30 as Court reopens after holiday INDEXOF EXHIBITS FROM RECORDS OF APPEAL #14-14-00410-CV PROVING MOVANT'S ALLEGATIONS OF •CLERK'S UNLAWFUL ACTS TO DISMISS APPEAL BY FRAUDS, and APPELLATE AUTHORITIES IN SUPPORT EX# DOCUMENT DESCRIPTION DATEORIG./FILED RECORD REFERENCE
* 1 DOCKET OF APPEAL #14-14-00410-CV-as of11-25-2015 MAY 28,2014 [FN 1] "Post Dismisaal Docket" 2.14COA RELEASED ORDERS AND.OPINIONS [11-6-15] NOV. 25,2015 txcourts.gov(14coa 3. LIST OF 14™ COA RELEASED ORDERS AND OPINIONS NOV.25,2015 txcourts.gov(14coa FOR 2015 4th QUARTER - STARTING OCTOBER 1, 2015
[including CIVIL ORDERS RELEASED ON OCT 15-2015 WHICH DEPUTY CLERK WARD FABRICATED-STATING THAT DOV'S MOTIO FOR EXTENSION OF TIME TO FILE HIS MOTION FOR REHEARING "WAS GRANTED IN PART. DENIED IN PART"?!!]
J 4.14COA RELEASED ORDERS AND OPINIONS [10-15-15] NOV.25,2015 txcourts.gov(14coa NO SCINTILLA OF ANY ORDER ENTERED BY ANY JUDGE OR PANEL IN DOV'S DISMISSED APPEAL #14-14-00410-CV- PROVING CRIMINAL ACTS OF TAMPERING ETC BY DEPUTY CLERK T.WARDf!)
5. RELEASED ORDERS AND OPINIONS OF 14™ COA AUG, 27,2015 txcourts.gov(14coa) 5.
6 UNSIGNED JUDGMENT WITH NO 'PER CURIAM" DESIGNATION AUG. 27,2015 txcourts.gov(14coa)
7 MEMORANDUM OPINION BYB-3 PANELDISMISSING APPEAL AUG. 27,2015 txcourtS.gov(14coa) PROVING THAT (A) DEPUTY CLERK WARD MANIPULATED THE DOCKET OF APPEAL #14-14-00410-CV UPON ITS 8-26-2015 HURRIED SETTING FOR DISMISSAL DELETING THEREFROM ALL REFERENCES TO5-7-15 ORDER ABATING APPEAL AND 2 LATER FILED RECORDS[![ DOING SO IN CONSPIRACY WITH APPELLEE'S ATTORNEY N. PARMA - WHO FILED MOTION TO DISMISS THE APPEAL WITHOUT CONFERENCE WITHOUT PROVIDING EVIDENCE.WHILE CONCEALING MATERIAL FACTS WITHOUT SERVING DOV THEREWITH -ALL DEFECTS KNOWN TO WARD!
AND ALSO PROVING THAT ALL THREE "B-3" PANEL JUSTICES ARE RECUSABLE AS FACT WITNESSES REGARDING WHAT DETAILS WERE IN THE DOCKET THEY SAW 8-27-15
AND .ALTERNATIVELY TO 2nd PRECEDING PARAGRAPH.PROVINGTHAT ONEOR MORE OF THE 3 JUSTICES OF THE "B-3"PANEL,ACTING IN CONSPIRACY WITH DEPUTY CLERK WARD (AND PERSON SETTING PANEL) AND APPELLEE'S ATTORNEY PARMA TO BRING ABOUTCASE DISMISSAL WHILE ASSURING THE NON-CONSPIRING MEMBERS OF THE PANEL WHO WERE NOT INFORMED OF 5-7-15 ABATEMENT AND 5-12-05 SUPPLEMENT
INCORPORATING BY REFERENCE.AS IF COPIED VERBTAIM RECORDS FILED 9-25-15 &9-28-15 IN #14-14-00410-CV 8 APPELLANT'S DESIGNATION OF 3rd SUPPLEMENTAL RECORD APRIL 16,2015 3SCR114-132; EX. "1"
9 INDEX OF APPELLANT'S 2nd SUPPLEMENTAL CLERK'S RECORD MAY 12,2015 2SCR ; EX."1"
10 PER CURIAM ORDERGRANTING APPELLANT'S 4-20-15 MOTION MAY 7,2015 EX. "1" at 05-07-2015
11 14 COA "RELEASED ORDERS &OPINIONS"-for 05/07/2015 MAY7, 2015 txcourts.gov(14coa)
12 INDEX OF APPELLANT'S 3rd SUPPLEMENTAL CLERK'S RECORD JUNE 3,2015 3SCR1-3; EX."1"
13 DOSOHS I.Ltd "SECOND MOTION TO DISMISS"-BY N.A.PARMA AUG.5, 2015 txcourts.gov(14coa);Ex.1
-a- [ LIST OF EXHIBITS CONTINUEDl EX# DOCUMENT DESCRIPTION DATE ORIG./FILED RECORD REFERENCE 5 CMH HOMES v.Perez 340 S.W.3d 444 (Tex 2011) May 27,2011 CourtListener.com (alternative treatment of appeal as mandamus) [discovered 11-24-15]
16 In re D&KW Family LP .Relator [01-11-00276-cv] AUG.9,2012 CourtListener.com, following CMH HOMES v.Perez 340 S.W.3d 444 (Tex.2011) (alternative treatment as mandamus) [discovered 11 -24-151
II.NO PREJUDICE WILL ACCRUE TO APPELLE FROM GRANTINGTHIS DUAL PRONG MOTION No prejudice will accrue to appellee-who has paid todate nothing to present record to this panel hi PRO-SE MOVANT'S PRAYER FOR RELIEF/ALTERNATIVELY PETITIONER FOR MANDAMUS RELIEF WHEREFORE pro-se Movant Dov K.Avni prays that the members ofthis honorable B-3 appellate panel who were not privy to the cospiracy between Deputy Clerk Troy Ward ["Ward"]and Appellee's counsel Nicholas Arthur Parma ["Parma"] and otheryet to be identified aiders, abbetters and Court insiders to dismiss this appeal for alleged "want of prosecution" after Movant/Appellant caused and paid for Original Clerk Record and three supplements in preparation for filing his brief after needed additional and amended findings offact amd conclusions oflaw are filed by Trial Judge Mike Miller -as this court ordered on may 7,2015 -will takejudicial notice ofthe blatant criminal tamperings in the selective, truncated and thus misleading record presented to them 8-27-15 by Deputy Ward so to achieve the dismissal ofthis meritorious appeal dealing with atrocious abuses ofdiscretion by the hon. trial judge Michael David Miller who dismissed Cause #.1997-40590 on March 23,2011,
then denied Dov's diligent attempts to reinstate thatcase and three years later has permanently enjoined Dov from asserting his lawful property rights-so to protectformer Judge Mark Davidson
who has backdated ,or alternatively unlawfully concealed temporary anti-suit injunctive order dated
5-25-2000 that was never entered intothe minutes of #97-40590,nor served on Dov by 11th JDC at any time prior to Appellee's new trial court attorneys Sherer &Crow doing so in September 2013(!)
Free access — add to your briefcase to read the full text and ask questions with AI
r~—————— r TIT• [HflWIIW Mil I —TT—~—-T*TTTf
FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS
APPEAL No. 14-14-00410-CV NOV 3 0 2015 DOV AVNI KAMINETZKY a/k/a DOV K. AVNI )( Christopher a. prine Appellant )( L CLERK v. )( DOSOHS I, LTD, Appellee )( [APPEAL of 5-15-14 FROM #1997^0590/11 JDC;HARRIS COUNTYJX
APPELLANT DOV K.AVNI's ORIGINAL OPPOSED MOTION TO TAKE JUDICIAL"! OF RECORDS OF #14-14-00410-CV -DISMISSED ON 8-27-15 BY 14COA's "B-3" PANEL and OTHER UNDISPUTABLY CORRECT RECORDS OF THIS APPELLATE COURT PROVING MOVANT'S ALLEGATIONS OF DEPUTY CLERK WARD'S UNLAWFUL ACTS TO DISMISS APPEAL BYTAMPERINGS IN 14C0A RECORDS AND FRAUDS ON "B3" PANEL and MOVANT. THEN RECALL THE "11-6-2015 MANDATE "AND RULE ONAPPELLANT'S PENDING MOTIONS.
AND ALTERNATIVELY IF EITHER FOREGOING MOTION IS DENIED BEFORE COURT'S 2015 TERM ENDS.TREAT THIS MOTION fas supplemented by 11-301 AS ORIGINAL PROCEEDING FOR MANDAMUS
TO THE HONORABLE JUSTICES OF THIS 14th COURT OF APPEALS OF TEXAS. APPELLANT DOV K. AVNI a/k/a DOV AVNI KAMINETZKY ["Dov"] respectfully prays for the taking of judicial notice by the members of this "B-3" panel who were not privy to the tamperings in the record ofthis appeal by deputy Clerk Troy Ward (proven by documents attached here and to Movant's pending motion for extension oftime for rehearing-filed 9-25 .supplemented 9-28-15 in anticipation of10-13-15 delivery of5th Supplemental Clerk Record Dov hasdesignated 9-4-15) Dov asks hon. justices Boyce.Busby and Brown -who unanimously decided on August 27,2015 to dismiss this appeal-acting in total reliance on fraudulent representations of Deputy Chief Clerk TROY D. WARD ["WARD"] who knowingly and willfully omitted from the record of this case important items prior to 8-26-15 rushed setting ofdismissal hearing onnext morning without notice to Dov-to take judicial notice of Ward's unlawful acts,then recall 11-6-15 mandate I. DEPUTY WARD'S UNLAWFUL ACTS PROVEN BELOW MATERIALLY ALTERED THE RECORD ADVERSLY TO DOV (1) omission/deletion of 124 page supplemental clerk record of 5-13-15(!) (2) paying no attention and not referencing any of the other supplemental Clerk Records ordered and paid by Dov.Appellee ordered no record (!) (3) reinstating on his own decision this appeal-abated since May 7.2015 without judicial review -as this court customarily does after abatement and based on 10 page selective skinny record with 325 pages missing. Movant attaches and incorporates here appendix with case records.relevant appellate rules and authorities and will supplement them by Monday, 11-30 as Court reopens after holiday INDEXOF EXHIBITS FROM RECORDS OF APPEAL #14-14-00410-CV PROVING MOVANT'S ALLEGATIONS OF •CLERK'S UNLAWFUL ACTS TO DISMISS APPEAL BY FRAUDS, and APPELLATE AUTHORITIES IN SUPPORT EX# DOCUMENT DESCRIPTION DATEORIG./FILED RECORD REFERENCE
* 1 DOCKET OF APPEAL #14-14-00410-CV-as of11-25-2015 MAY 28,2014 [FN 1] "Post Dismisaal Docket" 2.14COA RELEASED ORDERS AND.OPINIONS [11-6-15] NOV. 25,2015 txcourts.gov(14coa 3. LIST OF 14™ COA RELEASED ORDERS AND OPINIONS NOV.25,2015 txcourts.gov(14coa FOR 2015 4th QUARTER - STARTING OCTOBER 1, 2015
[including CIVIL ORDERS RELEASED ON OCT 15-2015 WHICH DEPUTY CLERK WARD FABRICATED-STATING THAT DOV'S MOTIO FOR EXTENSION OF TIME TO FILE HIS MOTION FOR REHEARING "WAS GRANTED IN PART. DENIED IN PART"?!!]
J 4.14COA RELEASED ORDERS AND OPINIONS [10-15-15] NOV.25,2015 txcourts.gov(14coa NO SCINTILLA OF ANY ORDER ENTERED BY ANY JUDGE OR PANEL IN DOV'S DISMISSED APPEAL #14-14-00410-CV- PROVING CRIMINAL ACTS OF TAMPERING ETC BY DEPUTY CLERK T.WARDf!)
5. RELEASED ORDERS AND OPINIONS OF 14™ COA AUG, 27,2015 txcourts.gov(14coa) 5.
6 UNSIGNED JUDGMENT WITH NO 'PER CURIAM" DESIGNATION AUG. 27,2015 txcourts.gov(14coa)
7 MEMORANDUM OPINION BYB-3 PANELDISMISSING APPEAL AUG. 27,2015 txcourtS.gov(14coa) PROVING THAT (A) DEPUTY CLERK WARD MANIPULATED THE DOCKET OF APPEAL #14-14-00410-CV UPON ITS 8-26-2015 HURRIED SETTING FOR DISMISSAL DELETING THEREFROM ALL REFERENCES TO5-7-15 ORDER ABATING APPEAL AND 2 LATER FILED RECORDS[![ DOING SO IN CONSPIRACY WITH APPELLEE'S ATTORNEY N. PARMA - WHO FILED MOTION TO DISMISS THE APPEAL WITHOUT CONFERENCE WITHOUT PROVIDING EVIDENCE.WHILE CONCEALING MATERIAL FACTS WITHOUT SERVING DOV THEREWITH -ALL DEFECTS KNOWN TO WARD!
AND ALSO PROVING THAT ALL THREE "B-3" PANEL JUSTICES ARE RECUSABLE AS FACT WITNESSES REGARDING WHAT DETAILS WERE IN THE DOCKET THEY SAW 8-27-15
AND .ALTERNATIVELY TO 2nd PRECEDING PARAGRAPH.PROVINGTHAT ONEOR MORE OF THE 3 JUSTICES OF THE "B-3"PANEL,ACTING IN CONSPIRACY WITH DEPUTY CLERK WARD (AND PERSON SETTING PANEL) AND APPELLEE'S ATTORNEY PARMA TO BRING ABOUTCASE DISMISSAL WHILE ASSURING THE NON-CONSPIRING MEMBERS OF THE PANEL WHO WERE NOT INFORMED OF 5-7-15 ABATEMENT AND 5-12-05 SUPPLEMENT
INCORPORATING BY REFERENCE.AS IF COPIED VERBTAIM RECORDS FILED 9-25-15 &9-28-15 IN #14-14-00410-CV 8 APPELLANT'S DESIGNATION OF 3rd SUPPLEMENTAL RECORD APRIL 16,2015 3SCR114-132; EX. "1"
9 INDEX OF APPELLANT'S 2nd SUPPLEMENTAL CLERK'S RECORD MAY 12,2015 2SCR ; EX."1"
10 PER CURIAM ORDERGRANTING APPELLANT'S 4-20-15 MOTION MAY 7,2015 EX. "1" at 05-07-2015
11 14 COA "RELEASED ORDERS &OPINIONS"-for 05/07/2015 MAY7, 2015 txcourts.gov(14coa)
12 INDEX OF APPELLANT'S 3rd SUPPLEMENTAL CLERK'S RECORD JUNE 3,2015 3SCR1-3; EX."1"
13 DOSOHS I.Ltd "SECOND MOTION TO DISMISS"-BY N.A.PARMA AUG.5, 2015 txcourts.gov(14coa);Ex.1
-a- [ LIST OF EXHIBITS CONTINUEDl EX# DOCUMENT DESCRIPTION DATE ORIG./FILED RECORD REFERENCE 5 CMH HOMES v.Perez 340 S.W.3d 444 (Tex 2011) May 27,2011 CourtListener.com (alternative treatment of appeal as mandamus) [discovered 11-24-15]
16 In re D&KW Family LP .Relator [01-11-00276-cv] AUG.9,2012 CourtListener.com, following CMH HOMES v.Perez 340 S.W.3d 444 (Tex.2011) (alternative treatment as mandamus) [discovered 11 -24-151
II.NO PREJUDICE WILL ACCRUE TO APPELLE FROM GRANTINGTHIS DUAL PRONG MOTION No prejudice will accrue to appellee-who has paid todate nothing to present record to this panel hi PRO-SE MOVANT'S PRAYER FOR RELIEF/ALTERNATIVELY PETITIONER FOR MANDAMUS RELIEF WHEREFORE pro-se Movant Dov K.Avni prays that the members ofthis honorable B-3 appellate panel who were not privy to the cospiracy between Deputy Clerk Troy Ward ["Ward"]and Appellee's counsel Nicholas Arthur Parma ["Parma"] and otheryet to be identified aiders, abbetters and Court insiders to dismiss this appeal for alleged "want of prosecution" after Movant/Appellant caused and paid for Original Clerk Record and three supplements in preparation for filing his brief after needed additional and amended findings offact amd conclusions oflaw are filed by Trial Judge Mike Miller -as this court ordered on may 7,2015 -will takejudicial notice ofthe blatant criminal tamperings in the selective, truncated and thus misleading record presented to them 8-27-15 by Deputy Ward so to achieve the dismissal ofthis meritorious appeal dealing with atrocious abuses ofdiscretion by the hon. trial judge Michael David Miller who dismissed Cause #.1997-40590 on March 23,2011,
then denied Dov's diligent attempts to reinstate thatcase and three years later has permanently enjoined Dov from asserting his lawful property rights-so to protectformer Judge Mark Davidson
who has backdated ,or alternatively unlawfully concealed temporary anti-suit injunctive order dated
5-25-2000 that was never entered intothe minutes of #97-40590,nor served on Dov by 11th JDC at any time prior to Appellee's new trial court attorneys Sherer &Crow doing so in September 2013(!)
Movant asks the Honorable panel to order the 14thcoa clerk to demand recall of the mandate from The 11th District Court and grant Dov at least 28 days to file his motion for rehearing after ruling on
pending motion of 9-25-15 to extend time for filing motion for rehearing (supplemented 9-28-15 and
incorporated) and alternatively treat this dual prong motion as application for mandamus reljef. /w (H-u-lr) .Dov K. Avni -pro-se party in #14-14-00410-cv 150-B Forest Drive, Jericho, NY 11753 -3- Cell #516-318-3791 E-Mail: dovduba1@aol.com
FOOTNOTES TO THE PRECEDING PROOFS OF MOVANT'S STATEMENTS IN THE FOREGOING INDEX
TFN11 the docket of Appeal #14-14-00410-CV (as of 9-5-15) proves that no court order was entered after notice was given to Dovby 3 justices panel or their leader on July 3.2015as falsely represented by 14thcoa Clerk-acting by deputy clerk . Troy P. Wardiand further proves the filing and content of Dov's 3SCR-delivered 5-13-15 was deleted from appeal record
TFN21 the docket of Appeal#14-14-00410-CV (as of 5-28-15) proves that the filing and content of Dov's 3SCR.deliveredon . 5-13-15 by Chris Daniel'sCivil Post Judgment Deputy ClerkDuaneGilmore was deleted from appeal record by Mr.Ward(l)
[FN3] omission of the emailed Proposed Findings by Appellee (on 5-13-15) Dov's 5-29-15 request for additional, . findings of fact and judge Miller's deial thereof 6-1-15 from Gilmore's 3SCR (of 7-2-15) proves he co-conspired(l)
CERTIFICATE OF ATTEMPTED CONFERENCE WITH APPELLEEE'S SHERER &Assoc. ATTORNEYS
Appellant/Movant hereby certifies he mailed last Friday (11-20-2015) conference letterto Appelee's
lawfirm in good faith attempt to cause Mr.Parma to agree to this dual pronged motion -which Dov
planned to file by 11-25-15 after receiving on 11-16 from his wife [who travelledthat day to Houston
from her Jericho.NY home] the "11-6-15" notice letter mailed by of for Deputy ClerkWard -delivered
only on Friday 11-13-15 in Jericho.NY. Mr. Parma has not yet contacted Movanttodate priorto filing
this dual prong motion by US Mail- from USPS downtown Houston center at 1500 Hadley St. Movant
will try again to confer with Parms by phone and/or -by E-Text-prior to supplementing them 11-30-15
when this courtjocated in City of Houston at Harris County.TXopens for business with other courts UNTIL PARMA UNEXPECTEDLY NOTIFIES MOVANT OTHERWISE/THESE MOTIONS ARE"DEEMED OPPOSED"
.Dov K. Avni -pro-se party in #14-14-00410-cv 150-B Forest Drive, Jericho, NY 11753 Cell# 516-318-3791 E-Mail: dovduba1@aol.com
CERTIFICATE OF MAILING
COURTSEY COPIES -WITHOUT EXHIBITS BUT WITH INDEX THEREOF TO BE SERVED ON "8-27-15 LIST"
2. NICHOLASA.PARMA - at SHERER &ASSOCIATES 11120 WURZBACH RD. 3100,San AntonioTX 78130-by PRIORITY US Mail, CM/RRR# [mailed 11-25-15)
2^5 JUDICIAL OFFICIALS LISTED IN 8-27-15 'OPINION DISTRIBUTE LIST'-EXCLUDING Hon.MICHAEL D.MILLER (DURING PENDENCY OF PERMANENT INJUNCTION HE ISSUED ON 3-31-14 IN #1997-40590/11JDC]
TO BE MAILED FIRST CLASS WITH CERTIFICATES OF MAILING MONDAY.11-30-15 TOGETHER WITH 1st SUPPLEMENT TO THIS MOTION+AFFIDAVIT -BUT EXCLUDING THE CASE EXHIBITS •INASMUCH AS NONE OF THEM EXHIBITED ANY INTEREST IN LEARNING THE ACTUAL FACTSf!)
DOV K. AVNI- PRO-SE MOVANT
-4- APPEAL No. 14-14-00410-CV
DOV AVNI KAMINETZKY a/k/a DOV K. AVNI )( Appellant )( v. )( DOSOHS I, LTD, )( Appellee )( [APPEAL of 5-15-14 FROM #1997-40590/11 JDC;HARRIS COUNTY.TX
EXHIBIT No. " -
TO APPELLANT'S ORIGINAL MOTION [ of 11-25-15 ]TO RECALL
THE "MANDATE"- ALLEGEDLY ISSUED 11-6-2015 BY THE
CLERK OF THIS 14™ COURT-AFTER ITS DEPUTY WARD TAMPERED
WITH CASE RECORD. FABRICATED 14COA PANEL'S ORDERS AND
DEFRAUDED MOVANT. OR TREAT IT AS ORIGINAL PROCEEDING-
TO BE DECIDED, IF NEEDED-BY MANDAMUS to TX SUPREME COURT Case Detail Page 1 of6
CASE: 14-14-00410-CV DATE FILED: 05/28/2014
CASE TYPE: UNKNOWN CIVIL CASE TYPE.
STYLE: DOV AVNI KAMINETZKY
V.: DOSOHS I, LTD
ORIG PROC: NO
TRANSFER FROM:
TRANSFER IN:
TRANSFER CASE:
TRANSFER TO:
TRANSFER OUT:
PUB SERVICE: WWW.14THCOA.COURTS.STATE.TX.US
APPELLATE BRIEFS
Date Event Type Description Document
BRIEF [ PDF/9.22 MB ] 02/18/2015 Brieffiled - oral argument requested Appellant NOTICE [ PDF/92 KB1
CASE EVENTS
Date Event Type Description Disposition Document
11/06/2015 Case stored
t PDF/61 BILL OF COST KB]
[ PDF/42 11/06/2015 Mandate issued Civil MANDATE KB|
CPDF/103 KB]
Mandate due to be 11/05/2015 issued
Motion for rehearing 10/26/2015 was not filed
Motion for rehearing 10/26/2015 due
Motion for extension of GRANTED IN PART AND [PDF/90 10/15/2015 time to file motion for Appellant KB] DENIED IN PART rehearing disposed Supplemental clerks [PDF/90 10/13/2015 Appellant KB] record filed
htlp://vvww.search.txcoiirts.gov/Case.aspx?cn=14-14-00410-CV&coa^coal4 11/25/2015 Case Detail Page 2 of6
Date 1 Event Type 1 Description J Disposition j Document ; Petition for review due 10/12/2015 in Supreme Court \- - -- - Motion for extension of [ PDF/8.53 09/30/2015 • time to file motion for i Appellant MOTION MB] rehearing filed Motion for extension of ; [PDF/533 09/28/2015 tinie to file motion for Appellant MB] rehearing filed Motion for rehearing 09/11/2015 was not filed
Motion for rehearing 09/11/2015 due
[ PDF/2.16 09/04/2015 Letter filed Appellant LETTER MB]
[ PDF/69 KB]
MEMORANDUM [ PDFA33 08/27/2015 i DISMISSED OPINION MB] : issued [ PDF/93 NOTICE KB]
Motion to dismiss 08/27/2015 : Appellee ; GRANTED ' disposed : Motion to dismiss 08/27/2015 • Appellee i GRANTED ; disposed
08/26/2015 : Submitted
08/26/2015 I Case ready to be set J ... 08/17/2015 Response due [ PDF/84 08/05/2015 j Motion to dismiss filed i Appellee MOTION KB] ;—- ---•
[PDF/89 08/05/2015 Notice of late brief Appellant NOTICE KB]
07/23/2015 • Appellants brief due •':. [PDF/88 07/03/2015 Case reinstated NOTICE KB]
; Supplemental clerks [PDF/90 07/02/2015 1 Appellant NOTICE KB] ; record filed 06/29/2015 • Hearing record due { Supplemental clerks 06/29/2015 4 \ record due
s Supplemental clerks [PDF/90 06/03/2015 ; Appellant KB] record filed
[PDF/89 05/07/2015 Motion disposed t Appellant \ GRANTED NOTICE KB] _^ .•!
[PDF/94 ORDER KB] 05/07/2015 i Order issued ABATED [ PDF/102 NOTICE KB]
[PDF/81 05/01/2015 > Response filed ; Appellee KB]
05/01/2015 : Response due [ PDFA^2 04/20/2015 ' Motion filed i Appellant MB]
http://www.search.txcoiirts.gov/Case.aspx?cn=14-14-00410-CV&coa=coal4 11/25/2015 Case Detail Page 3 of6
04/16/2015 Notice of late brief Appellee [ PDF/90 KB)
04/10/2015 Amended brief due
03/21/2015 Appellees brief due
[ PDF/86 KB] 03/12/2015 Order entered [ PDF/91 KB]
03/09/2015 Response filed Appellant RESPONSE [PDFA.06 MB]
02/25/2015 Letter filed LETTER [ PDF/160 KB]
02/24/2015 Supplemental clerks [PDF/90 record filed Appellant NOTICE KB]
02/23/2015 Motion to dismissfiled •; Appellee MOTION [PDF/83 KB]
[ PDF/9.22 BRIEF Brief filed - oral MB] 02/18/2015 Appellant argument requested [ PDF/92 NOTICE KB]
02/12/2015 Appellants brief due
02/06/2015 Letterfiled ; Appellant LETTER (PDF/7.91 MB]
02/02/2015 Letter filed ) Appellant LETTER [ PDF/5.68 MB]
[PDF/88 ORDER KB] 01/29/2015 Order entered I PDF/91 NOTICE KB]
Motion for extension of j 01/29/2015 time to file brief DENIED disposed Reply to response or [ PDF/1.26 01/27/2015 Appellant motion filed MB]
01/26/2015 : Response filed [PDF/391 Appellee KB]
! Motion for extension of [ PDF/1.63 01/20/2015 Appellant ; time to file brief filed MB]
01/05/2015 r Appellants brief due
j Motion for extension of 12/23/2014 [ PDF/98 ; time to file brief Appellant GRANTED KB] \ disposed 12/22/2014 \ Letter filed Appellant LETTER [ PDF/561 KB]
. Motion for extension of [ PDF/1.71 12/16/2014 Appellant . time to file brief filed MB]
12/05/2014 \ Supplemental clerks J record due
Supplemental clerks [PDF/90 12/04/2014 Appellant record filed KB]
12/01/2014 / Appellants brief due
11/26/2014 ', Letter filed [PDF/5.40 Appellant LETTER MB]
http://www.search.txcourts.gov/Case.aspx?cn=l4-14-00410-CV&coa=coal4 11/25/2015 Case Detail Page 4 of6
Extension of time to file [PDF/96 11/26/2014 District Clerk GRANTED clerks record disposed KB]
Extension of time to file [ PDF/48 11/25/2014 District Clerk EXTENSION clerks record filed KB]
10/28/2014 [ PDF/1023 Letter filed Appellant MB]
[ PDF/81 KB] 10/28/2014 Order entered [ PDF/91 NOTICE KB]
10/13/2014 Appellants brief due
Motion for extension of 09/11/2014 [ PDF/91 time to file notice of Appellant DENIED AS MOOT KB] appeal disposed 09/11/2014 Clerks record due District Clerk
09/04/2014 [ PDF/106 Clerks record filed ; Appellant NOTICE KB]
08/27/2014 [PDF/94 Notice of late record ! District Clerk KB]
08/20/2014 Clerks record due District Clerk
08/18/2014 Clerks record due ; District Clerk
08/12/2014 [ PDF/8.36 Letter filed : Appellant MB]
[PDF/135 08/12/2014 Letter filed J Appellant MB]
Extension of time to file [ PDF/95 08/08/2014 District Clerk GRANTED clerks record disposed KB]
Extension of time to file [ PDF/49 08/06/2014 District Clerk EXTENSION clerks record filed KB]
[PDF/94 08/05/2014 Notice of late record District Clerk KB)
07/29/2014 Clerks record due
07/29/2014 Record due
Docketing statement DOCKETING [ PDF/6.66 06/20/2014 Appellant STATEMENT MB] filed
Docketing statement 06/12/2014 Appellant due
Mediation docketing 06/12/2014 Appellee statement due
MEDIATION Mediation docketing [PDFA96 06/10/2014 Appellee DOCKETING KB) statement returned STATEMENT
06/09/2014 Court fee due Appellant 06/05/2014 Fee paid Appellant Notification received 05/29/2014 that no record was taken
Court reporters notice COURT REPORTER'S [PDF/120 05/29/2014 to court regarding Court Reporter INFORMATION KB ] status of record SHEET
http://www.search.txcourts.gov/Case.aspx?cn==14-14-00410-CV&coa=coal4 11/25/2015 Case Detail Page 5 of6
{ Date Event Type Description Disposition Document
Court reporters [ PDF/100 05/28/2014 Court Reporter KB] information sheet sent
Letter issued by the [ PDF/92 05/28/2014 Court Reporter KB) court
Letter issued by the [ PDF/92 05/28/2014 Both parties KB] court
Case began in court of LETTER OF [PDF/158 05/28/2014 ASSIGNMENT MB ] appeals Motion for extension of [ PDF/631 05/16/2014 time to file notice of Appellant MB] appeal filed
Notice of appeal filed in 05/15/2014 trial court
Request for findings of 04/19/2014 fact and conclusions of law
Judgment signed by 03/31/2014 trial court judge
CALENDARS
Set Date Calendar Type Reason Set
11/06/2015 Case Stored Case stored
Date civil case will be destroyed (6 yrs 11/08/2021 Retention after mandate)
PARTIES
Party PartyType Representative
Kaminetzky, Dov Avni Appellant Dov Avni Kaminetzky
Eric David Sherer Dosohs I, LTD Appellee Nicholas Arthur Parma
TRIAL COURT INFORMATION
COURT: 11TH DISTRICT COURT
COUNTY: HARRIS
COURT JUDGE: HONORABLE JUDGE. 11TH DISTRICT COURT
COURT CASE: 1997-40590
COURT REPORTER: TERRI ANDERSON
PUNISHMENT:
http://www.search.txcourts.gov/Case.aspx?cn=14-14-00410-CV&coa=coal4 11/25/2015 Case Detail Page 6 of 6
http://wvvAv.search.fcccourts.gov/Case.aspx?cn=14-14-00410-CV«&coa=coal4 11/25/2015 APPEAL No. 14-14-00410-CV
DOV AVNI KAMINETZKY a/k/a DOV K. AVNI )( Appellant )( v. )( DOSOHS I, LTD, )( Appellee )( [APPEAL of 5-15-14 FROM #1997^0590/11 JDC;HARRIS COUNTY.TX
EXHIBIT No. "3 " TO APPELLANT'S ORIGINAL MOTION [ of 11-25-15 ]TO RECALL
CLERK OF THIS 14th COURT-AFTER ITS DEPUTY WARD TAMPERED
TO BE DECIDED. IF NEEDED-BY MANDAMUS to TX SUPREME COURT Released Orders/Opinions Page 1 of 1
Released Orders/Opinions
Enter a year and quarter to view a list of Released Orders/Opinions. 2015 v Jul-Sep v
! Refresh
October November December
10/29/2015
10/28/2015
10/27/2015
10/26/2015
11/25/2015
11/24/2015
10/23/2015 11/23/2015
10/22/2015
10/21/2015
10/20/2015 11/20/2015
11/19/2015
11/18/2015
11/17/2015
10/15/2015
10/14/2015
10/13/201. 11/13/2015
10/12/201. 11/12/2015
11/10/2015
10/09/2015
10/08/201!
10/07/201!
10/06/201! 11/06/2015
11/05/2015 -
10/05/201!
| 11/04/2015 11/03/2015
10/02/2015 11/02/2015
10/01/2015
http://www. search .txcourts.gov/docketsrch. aspx?coa=coa14&s=c 11/25/2015 APPEAL No. 14-14-00410-CV
DOV AVNI KAMINETZKY a/k/a DOV K. AVNI )( Appellant )( v. )( DOSOHS I, LTD, )( Appellee )( [APPEAL of 5-15-14 FROM #1997-40590/11 JDC;HARRIS COUNTY.TX
EXHIBIT No. " k " TO APPELLANT'S ORIGINAL MOTION [of 11-25-15 ]TO RECALL
WITH CASE RECORD, FABRICATED 14COA PANEL'S ORDERS AND
DEFRAUDED MOVANT, OR TREAT IT AS ORIGINAL PROCEEDING-
TO BE DECIDED, IF NEEDED-BY MANDAMUS to TX SUPREME COURT Released Opinions Page 1 of 3
RELEASED ORDERS & OPINIONS FOR 10/15/2015
Civil Causes Decided
Case Number Style Disposition Judges 14-14-00201-CV ' i ' Houston Methodist San Jacinto Hospital v. Ten nn.i-r.rr-r. A.m. 1 Justice Jamison Opinion by , . r I REVERSED AND . .. .. _ „ Justice [PDF] Ford [ RrMnrCrn Justice McCally McCally Appeal from 295th District Court ofHarris County j 1Justice Wise j J 14-14-00408-CV Giovanny Laguan v. R.D. Parikh | §Justice Boyce Memorandum Appeal from County Court at Law #4 of Fort Bend j DISMISSED j Justice Busby Opinion Per [PDF] Curiam County j I Justice Brown 1 | Texas Transportation Commission and Ted 14-14-00823-CV Houghton, in his Official Capacity as Chair of Chief Justice Frost REVERSED AND Opinion by the Texas Transportation Commission v. City of Justice Boyce RENDERED Justice Boyce Jersey Village Justice McCally Appeal from 165th District Court of Harris County
14-14-00823-CV Texas Transportation Commission and Ted Concurring Houghton, in his Official Capacity as Chair of Chief Justice Frost Opinion by the Texas Transportation Commission v. City of CONCURRING Justice Boyce Chief Justice Jersey Village Justice McCally Frost Appeal from 165th District Court of Harris County 14-14-01007-CV Thomas Beets and Leslie Beets v. National Justice Boyce Memorandum Collegiate Student Loan Trust 2005-2 DISMISSED Justice Busby Opinion Per [PDF] Appeal from 344th District Court of Chambers Justice Brown Curiam County
14-15-00686-CV Margnus Ibe v. Pennymac Loan Services, LLC Chief Justice Frost Memorandum Opinion Per [ PDF ] Appeal from County Court at Law No 1 of Fort DISMISSED Justice Christopher j Curiam Bend County Justice Donovan 1
Civil Orders
Case Number Style Disposition Judges
Remote Control Hobbies L.LC. A/K/A and D/B/A Remote Control Hobbies v. Airborne 14-12-01088-CV Freight Corporation D/B/A Airborne Express Order [ PDF ] Successor by Merger to DHL Express Appeal from Co CivilCt at Law No 1 of Harris County
14-14-00257-CV Hugh Forrest v. Technical and General Guaranty Co., S.A. Order [ PDF ] Appeal from 165th District Court of Harris County
14-15-00279-CV Loren Rose Jeremy v. Nicholas Dusan Jeremy "
Appeal from 306th District Court of Galveston Order [ PDF ] County 14-15-00320-CV Thomas R. Wright v. PlainsCapital Bank Order [ PDF ] Appeal from 295th District Court of Harris County 1 Uwakwe C. Oko and Victoria L Oko v. Tony Ali, 1 14-15-00505-CV Junior Properties and Everbank 1
Order [PDF] Appeal from 400th DistrictCourt of Fort Bend i County ! William Satterwhite, Jr. v. Christopher Evans i 14-15-00699-CV and Yi Zhang Order [PDF] Appeal from Co Civil Ct at LawNo 2 of Harris 1 1 County 1
14-15-00763-CV Estate of Linda Kuebler Hinkley, Deceased Order [ PDF ] Appeal from Probate Court of Galveston County
http://www.search.txcourts.gov/Docket.aspx?coa=coal4&FullDate=10/15/2015 10/26/2015 Released Opinions Page 2 of 3
Case Number 1 Style Disposition 1Judges 14-15-00785-CV » ^verbankv. SeedergyVentures, Inc., a ! I S 1 rPDFl 1CorPorat'on ABATED | j Appeal from 190th District Court of Harris County ____™_i_______ . j '__J •••—' 14-15 00864-CV j in the Interest ofaiM.S., Child Order [ PDF ] Appeal from 314th District Court of Harris County
Criminal Causes Decided
Case Number Style Disposition Judges 14-14-00272-CR Jeremy Patrick Shakesnider v. The State of Chief Justice Frost Opinion by Texas AFFIRMED Justice Christopher Chief Justice [PDF] Appeal from 400th District Court of Fort Bend Justice Donovan Frost County
14-14-00421-CR Rebecca Victoria Humaran v. The State of Texas Justice Christopher Opinion by Appeal from 239th District Court of Brazoria AFFIRMED Justice Donovan Justice [PDF] County Guiney Christopher
14-14-00682-CR Troy Lee Bridges v. The State of Texas Justice Boyce Memorandum Appeal from 344th District Court of Chambers AFFIRMED Justice Busby Opinion by [PDF] County Justice Brown Justice Brown
14-14-00688-CR Gary Martins v. The State of Texas Justice Boyce | Memorandum AFFIRMED Justice Busby | Opinion by [PDF] Appeal from 176th District Court of HarrisCounty Justice Brown Justice Brown j . , ._J 14-14-00847-CR Carlos A. Arias v. The State of Texas Chief Justice Frost Opinion by Appeal from Co Crim Ct at Law No 13 of Harris AFFIRMED Justice Jamison Justice [PDF] County Justice Busby Jamison
14-15-00647-CR Justice Boyce Memorandum William Charles Wingate v. The State of Texas DISMISSED Justice Busby Opinion Per [ PDF ] Appeal from 232nd District Court of Harris County Justice Brown Curiam
14-15-00665-CR 1 Chief Justice Frost Memorandum Miyaggi Aleman v. The State of Texas DISMISSED Justice Christopher Opinion Per [ PDF ] Appeal from 174th DistrictCourt of HarrisCounty Justice Donovan Curiam
Criminal Orders
Case Number Style Disposition Judges \ i 14-14-01011-CR Margaret Renee Mayerv. The State of Texas 1 Order [PDF] 1 Appeal from 230th District Court of Harris County j ' I 14-15-00256-CR jUlessia Procter v. The State of Texas Order [PDF] j Appeal from 208th District Court of Harris County 1 . _ J Lashonda Deon Jones v. The State of Texas 14-15-00300-CR Appeal from 221st District Court of Montgomery County
Lashonda Deon Jones v. The State of Texas 14-15-00301-CR Appeal from 221st District Court of Montgomery County
14-15-00733-CR Glenn E. Marsh v. The State of Texas 1 Appeal from Co Crim Ct at Law No 3 of Harris Order [PDF] J™' 1 County
To view or print PDF files you must have the Adobe Acrobat® reader. This software may be obtained without charge from Adobe. Download the reader from the Adobe Web site
http://www.search.txcourts.gov/Docket.aspx?coa=coal4&FullDate=10/15/2015 10/26/2015 Released Opinions Page 3 of 3
http://www.search.txcourts.gov/Docket.aspx?coa==coal4&FullDate=10/15/2015 10/26/2015 APPEAL No. 14-14-00410-CV
DOV AVNI KAMINETZKY a/k/a DOV K. AVNI )( Appellant )( v. )( DOSOHS I, LTD, )( Appellee )( [APPEAL of 5-15-14 FROM #1997^0590/11 JDC;HARRIS COUNTY.TX
(( *v « EXHIBIT No.
TO BE DECIDED. IF NEEDED-BY MANDAMUS to TX SUPREME COURT Released Opinions Page 1 of 3
RELEASED ORDERS & OPINIONS FOR 08/27/2015
14-13-00094-CV James Stearns v. Lisa Martens and Steams Pools AFFIRMED IN PART Chief Justice Frost Opinion by and Spas, Inc. AND REVERSED AND Justice Christopher Appeal from 268th District Court of Fort Bend Chief Justice Frost [PDF] County REMANDED IN PART jJustice Busby 14-13-00988-CV
Memorandum T.C.M.A. Trucking, Inc. v. Mario Cisneros and J Chief Justice Frost Opinion by Felix A. Auz AFFIRMED jJustice Boyce Chief Justice Appeal from 165th District Court of Harris County I Justice McCally Frost
j 14-13-00989-CV 1 AFFIRMED IN PART Chief Justice Frost Opinion by i Felix A. Auz v. Mario Cisneros Chief Justice [PDF] j Appeal from 165th District Court ofHarris County AND REVERSED AND | Justice Boyce Frost i REMANDED IN PART Justice McCally
14-13-00989-CV j Concurring {Felix A. Auz v. Mario Cisneros {Chief Justice Frost Opinion by [PDF] j Appeal from 165th District Court of Harris County CONCURRING jJustice Boyce Justice Boyce | | Justice McCally __ __ J 14-14-00137-CV Justice Christopher Memorandum Dominic Marrocco v. Mark Hill j REVERSED AND Justice Donovan Opinion by [ PDF ] Appeal from 164th District Court ofHarris County ] RENDERED Justice Wise Justice Wise j 14-14-00172-CV Katy Springs &Manufacturing, Inc. v.Joseph AFFIRMED AS Justice Boyce Opinion by Favalora 1M0DIFIED Justice Brown 1 Justice Brown Appeal from 133rd District Court of Harris County j Justice Wise
14-14-00410-CV Justice Boyce Dov Avni Kaminetzky v. Dosohs I, LTD Memorandum Opinion" Per [PDF] Appeal from 11th District Court of Harris County DISMISSED jJustice Busby Curiam j Justice Brown
14-14-00462-CV The State of Texas v. Treeline Partners, LTD., a Texas Limited Partnership, Laroca Partners U, ! Opinion by LTD., a Texas Limited Partnership and CBS REVERSED AND Justice Christopher Justice [PDF] Outdoor, Inc., a Delaware Corporation REMANDED "TuT | Justice Wise Christopher Appeal from Co Civil Ct at Law No 3 of Harris vCounty
14-14-00768-CV j Justice Christopher Memorandum j In the Interest of O.Z.O AFFIRMED Justice Brown Opinion by [PDF] j Appeal from 257th District Court of Harris County Justice Wise Justice Brown j 1 14-14-00930-CV Justice Christopher Opinion by | Ex Parte Brett Scott AFFIRMED Justice Brown Justice [PDF ] j Appeal from 164th District Court of Harris County Justice Wise Christopher | ., _J 14-15-00026-CV DCR Mortgage III Sub I, LLCv. Lawrence C. Chief Justice Frost Memorandum Math is DISMISSED Justice Christopher Opinion Per [ PDF ] Appeal from 126th DistrictCourt of Travis County Justice Donovan Curiam
14-15-00101-CV Ricardo G. Cedillo, Jason C. Zehner, J. Russell Justice Boyce Opinion by Davis and Davis, Cedillo & Mendoza, Inc. v. REVERSED AND Justice McCally Justice [PDF] Immobiliere Jeuness Establishment REMANDED Justice Donovan McCally Appeal from 215th District Court of Harris County 14-15-00556-CV Justice Boyce Memorandum In Re Christopher Spates DENIED Justice McCally Opinion Per [PDF] Appeal from 312th DistrictCourt of HarrisCounty Justice Donovan Curiam
http://www. search.txcourts.gov/Docket.aspx?coa=coa14&FullDate=08/27/2015 9/3/2015 Released Opinions Page 2 of 3
Case Number Style Disposition Judges 14-15-00568-CV j j Justice Christopher Memorandum jIn Re Jinsun LLC I GRANTED Justice Brown Opinion by [PDF] j Appeal from 113th District Court of Harris County 1 Justice Wise Justice Brown 1 1
14-15-00650-CV Chief Justice Frost Memorandum In Re Colleen Roberts, etal j Justice Christopher Opinion Per [ PDF ] Appeal from 152nd District Court of Harris County Justice Jamison Curiam | 14-15-00692-CV Shahem Barazi, The Black Stone Builder, Inc., | Chief Justice Frost Memorandum andTheBlack Stone Management, Inc. v. Zuher ) „„.,,„.,__ _ , . Justice Christopher Opinion Per [ PDF ] Salameh J1 DISMISSED Justice Donovan Curiam Appeal from 295th District Court ofHarris County I .... - ..... i 14-15-00713-CV | j Justice Boyce Memorandum j In re J. Womack DISMISSED | Justice Busby Opinion Per [PDF ] | Appeal from ... of Galveston County Justice Brown Curiam j
Case Number Style Disposition Judges James Stearns v. Lisa Martens and Stearns Pools 14-13-00094-CV and Spas, Inc. Order [ PDF ] Appeal from 268th District Court of Fort Bend i County
14-14-00865-CV Coreslab Structures (Texas), Inc. v. Scottsdale | Order [ PDF ] Insurance Company I ABATED Appeal from 55th District Court of Harris County j 14-15-00654-CV Logan Young v. Choice Refined Products, LLC Order [ PDF ] Appeal from 295th District Court of Harris County
Connie Range, Trustee ofthe Martha Range f j j 14-15-00672-CV Trust d/b/a Reliant Engineering and Machine, £ • I Order [ PDF ] US and Samuel Range v. Calvary Christian | ABATED I ! Fellowship I 1 J Appeal from 234th District Court of Harris County ; i 1
Case Number Style Disposition Judges 14-14-00142-CR j Chief Justice Frost j Robelio Aviles-Barroso v. The State of Texas AFFIRMED AS Justice Boyce pinion y [PDF] Appeal from 337th District Court of Harris County MODIFIED Justice Boyce | Tr ' Justice McCally
14-14-00142-CR j Concurring Opinion by j Robelio.from , . Aviles-Barroso v. The State of Texas 33?th District Qoun ofHarrjs County CONCURRING Chief Justice Frost Justice Boyce ChiefJustice 1 Justice McCally i Frost ! 1 j i 14-14-00473-CR j Memorandum j Jimmy Earl van-Cleave v.The State ofTexas Justice Boyce AFFIRMED Justice McCally Opimonby Justice j Appeal Tr from 179th District Court of Harris County' Justice Donovan Donovan j
14-14-00514-CR j 1 PaulWayne Harrisv. The State of Texas Chief Justice Frost Memorandum j^ ,frQm 26gth Djstrjct Court of fon Bend AFFIRMED Justice Jamison Opinion by [PDF] j J^r - , *• „ \. %County Justice Busby Justice Busby f '
14-14-00607-CR
Memorandum Chief Justice Frost Brandon Ray Morgan v. The State of Texas Opinion by AFFIRMED Justice Jamison Appeal from 338th DistrictCourt of HarrisCounty Chief Justice Visiting Judge Yates Frost
http://www.search.txcourts.gov/Docket.aspx?.coa=coal4&FullDate=08/27/2015 9/3/2015 Released Opinions Page 3 of 3
Case Number Style I Disposition Judges 14-14-00781-CR Ex Parte Juan Raul Rojas v. The State of Texas Chief Justice Frost Memorandum Appeal from Co Crim Ct at Law No 15 of Harris J AFFIRMED Justice Boyce Opinion by [ PDF ] County Justice McCally Justice Boyce
14-14-00835-CR
Memorandum Ex Parte Chidiebele Gabriel Okonkwo Chief Justice Frost Opinion by Appeal from 434th Judicial District Court of Fort AFFIRMED Justice Jamison [PDF] Chief Justice Bend County Justice Busby Frost
I 14-14-00943-CR
Memorandum j David Sidney McKeand v.The State ofTexas Chief Justice Frost Opinion by [PDF] | Appeal from Co Crim Ct at Law No 7 of Harris | AFFIRMED | Justice Jamison Chief Justice j County I j Justice Busby Frost
14-15-00314-CR Justice Boyce Memorandum Ronnie Thibodeaux v. The State of Texas AFFIRMED Justice Busby Opinion Per [PDF] Appeal from Crim Dist Ct of Jefferson County Curiam I Justice Brown
14-15-00315-CR Justice Boyce Memorandum Ronnie Thibodeaux v. The State of Texas AFFIRMED I Justice Busby Opinion Per [ PDF ] Appeal from Crim Dist Ct of Jefferson County Justice Brown Curiam
14-15-00316-CR Justice Boyce Memorandum Ronnie Thibodeaux v. The State of Texas AFFIRMED Justice Busby Opinion Per [ PDF ] Appeal from Crim Dist Ct of Jefferson County Justice Brown Curiam
14-15-00594-CR 1Justice Christopher Memorandum In Re James Thomas Green DENIED Justice Brown Opinion Per [PDF] Appeal from 248th District Court of Harris County Justice Wise Curiam
14-15-00700-CR Justice Jamison Memorandum In Re Princella V. Ross-Steels DENIED Justice McCally Opinion Per [PDF] Appeal from 263rd DistrictCourt of Harris County Justice Wise Curiam
14-15-00712-CR j In re Ricky Dean Fowler Chief Justice Frost Memorandum I Appeal from County Court at Law No 1 of DISMISSED Justice Christopher Opinion Per [PDF] Curiam j Galveston County Justice Donovan
Case Number Style Disposition Judges Daniel Cruz v. The State of Texas 14-14-00908-CR Appeal from 268th District Court of Fort Bend ABATED Order [ PDF ] County j Quincy Lee Johnson v. The State of Texas j 14-15-00018-CR ABATED Appeal from 208th District Court of Harris County r " ~* 14-15-00111-CR Leiroi Mickele Daniels v. The State of Texas ABATED Order [PDF] j Appeal from 230th District Court of Harris County 1 1 PastorIsreal Diaz-Bonillav. The State of Texas 1 ABATED I Appeal from 182nd District Court ofHarris County " """ r ' "" " 14-15-00640-CR | Ex Parte Michael Brent Sewell v. Order (PDF ] ! Appeal from 338th DistrictCourt of HarrisCounty
To view or print PDF files you must have the Adobe Acrobat® reader. This software may be obtained without charge from Adobe. Download the reader from the Adobe Web site
http://www.search.txcourts.gov/Docket.aspx?coa=coal4«&FullDate=08/27/2015 9/3/2015 APPEAL No. 14-14-00410-CV
DOV AVNI KAMINETZKY a/k/a DOV K. AVNI )( Appellant )( v. )( DOSOHS I, LTD, )( Appellee )( [APPEAL of 5-15-14 FROM #1997-40590/11 JDC;HARRIS COUNTY.TX
EXHIBIT No NO. " (p " TO APPELLANT'S ORIGINAL MOTION [of 11-25-15 ]TO RECALL
TO BE DECIDED. IF NEEDED-BY MANDAMUS to TX SUPREME COURT August 27, 2015
JUDGMENT
3ty£ iFourtmttlj Court of Appeals DOV AVNI KAMINETZKY, Appellant NO. 14-14-00410-CV V
DOSOHS I, LTD, Appellee
Today the Court heard appellee's motion to dismiss the appeal from the judgment signed by the court below on March 31, 2014. Having considered the motion and found it meritorious, we order the appeal DISMISSED. We further order that all costs incurred by reason ofthis appeal be paid by appellant, Dov Avni Kaminetzky.
We further order this decision certified below for observance.
^ APPEAL No. 14-14-00410-CV
DOV AVNI KAMINETZKY a/k/a DOV K. AVNI )( Appellant )( v. )( DOSOHS I, LTD, )( Appellee )( [APPEAL of 5-15-14 FROM #1997-40590/11 JDC;HARRIS COUNTY.TX
EXHIBIT No. ""7 " TO APPELLANT'S ORIGINAL MOTION [ of 11-25-15 ]TO RECALL
TO BE DECIDED, IF NEEDED-BY MANDAMUS to TX SUPREME COURT Motion Granted; Appeal Dismissed and Memorandum Opinion filed August Z /, Zujl5.
In The
Jftoitrtetttff Court o! Appeals
NO. 14-14-00410-CV
DOV AVNI KAMINETZKY, Appellant V.
On Appeal from the 11th District Court Harris County, Texas Trial Court Cause No. 1997-40590
MEMORANDUM OPINION
This is an appeal from a judgment signed March 31, 2014. The clerk's record was filed September 4, 2014. No reporter's record was taken. No brief has- been filed.
On March 12, 2015, this court issued an order stating that unless appellant submitted a brief on or before April 10, 2015, the court would dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3(b). Appellant did not respond.
On August 5, 2015, appellee filed a motion to dismiss for appellant's failure to file a brief. Appellant did not respond.
Accordingly, appellee's motion to dismiss is GRANTED. The appeal is ordered DISMISSED
PER CURIAM
Panel consists of Justices Boyce, Busby, and Brown. APPEAL No. 14-14-00410-CV
DOV AVNI KAMINETZKY a/k/a DOV K. AVNI )( Appellant )( v. )( DOSOHS I, LTD, )( Appellee )( [APPEAL of 5-15-14 FROM #1997-40590/11 JDC;HARRIS COUNTY.TX
EXHIBIT No. "/T" TO APPELLANT'S ORIGINAL MOTION [of 11-25-15 ]TO RECALL
WITH CASE RECORD. FABRICATED 14C0A PANEL'S ORDERS AND
TO BE DECIDED, IF NEEDED-BY MANDAMUS to TX SUPREME COURT CMH HOMES v. Perez, 340 S.W.3d 444 - CourtListener.com Page 1 of 9
Toggle navigation Court ListenerCjL • About • FAQ • Tour • Coverage • Sign in / Register
© Back to Home Page
Your Notes
(edif) £
(none)
Cited By (106)
This opinion has been cited by these opinions:
• In Re Service Corp. Intern., 355 S.W.3d 655 (Tex. 2011) • in Re Santander Consumer USA Inc., 01-12-00728-CV (Tex. App. 2013) • in Re Santander Consumer USA Inc., 01-12-00728-CV (Tex. App. 2013) • in Re D & KW Family, L.P.. 01-11-00276-CV (Tex. App. 2012) • Cole Distribution, Inc., Cole Chemical & Distributing, Ind., Princess Properties ...
Full List of Citations ©
Authorities (31)
This opinion cites:
• 950 Corbmdale v. Kotts Capital Holdings, 316 S.W.3d 191 (Tex. App. 2010) • Acequip Ltd. v. American Engineering Corporation, 315 F.3d 151 (2d Cir. 2003) • Amanda S. May v. Higbee Company, Doing Business as Dillard's ... • Atsa of California. Inc., Plaintiff/cross-Claimant/appellant v. Continental Insurance Co.. Etc. • Badiga v. Lopez. 274 S.W.3d 681 (Tex. 2009)
Full Table of Authorities ©
View Original
From the court | Our backup
Share this Opinion
F3^ JJl Q- https://www.courtlistener.
Sponsored Links
https://www.courtlistener.com/opinion/895326/cmh-homes-v-perez/? 11/24/2015 CMH HOMES v. Perez, 340 S.W.3d 444 - CourtListener.com Page 2 of 9
hiONTRdSE ,•*& SjSgf-,.1 Motown 4EHEIGHT *XM SEUMDIS. itsa;
sok?4k
'ree Law Project, a federally-recognized 501(c)(3) non-profit. We rely heavily on donations turn off ads, we ask for a $10 donation each year.
PREVIEW-PLANS; .••..'':-:.'AN0'P.RICES :*
CMH HOMES v. Perez, 340 S.W.3d 444 (Tex. 2011) Sign in or register to save a favorite.
(click to dismiss)
Texas Supreme Court
Filed: May 27th, 2011
Status: Precedential
Citations: 340 S.W.3d 444
Docket Number: 10-0688
Judges: Wainwright
Fingerprint: b7c6937c05a45d8a37a6fb751clc6bf052c53bfb
340 S.W.3d 444 (2011)
https://www.courtlistener.com/opinion/895326/cmh-homes-v-perez/? 11/24/2015 CMH HOMES v. Perez, 340 S.W.3d 444 - CourtListener.com Page 3 of 9
CMH HOMES, et al., Petitioners, v. . Adam PEREZ, Respondent. No. 10-0688. •
Supreme Court of Texas.
Argued February 3, 2011. Decided May 27, 2011.
*446 Brendan K. McBride, The McBride Law Firm, Rio Grande City, David L. Rumley, Wigington Rumley Dunn LLP, Corpus Christi, and Baldemar Gutierrez, Law Offices of Baldemar Gutierrez, Alice, for Adam Perez.
Scott A. Brister, Lino Mendiola, Andrews & Kurth L.L.P., Austin, Jorge C. Rangel, The Rangel Law Firm, P.C., Corpus Christi, for CMH Homes, Inc.
Augustin Rivera Jr., Dunn Weathered Coffey Rivera & Kapertism, P.C., Corpus Christi, for Bruce Robin Moore, Jr.
Justice WAINWRIGHT delivered the opinion of the Court.
Once more, this Court is presented with a question of the availability of judicial review of an interlocutory arbitration order. In this consumer dispute, CMH Homes, Inc. and Adam Perez agreed to submit their claims to arbitration but could not agree on an arbitrator. Because of this disagreement, the trial judge intervened and appointed an arbitrator to preside over their dispute. CMH Homes filed an interlocutory appeal challenging this appointment, requesting in the alternative that its appeal be treated as a mandamus petition. The court of appeals determined it was without jurisdiction and dismissed the suit. We agree with the court of appeals' determination that Texas Civil Practice and Remedies Code section 51.016 does not allow an interlocutory appeal of an order appointing an arbitrator. However, under these circumstances, CMH Homes's appeal may properly be considered as a petition for writ of mandamus. We remand for the court of appeals to consider this appeal as a petition for writ of mandamus.
I. Background
A. Facts and Procedure
On October 2, 2002, Adam Perez purchased a manufactured home from CMH Homes, with the help of salesman Bruce Robinson Moore Jr. Vanderbilt Mortgage and Finance provided financing for the purchase. The retail installment contract between CMH Homes and Perez contained an arbitration clause which provides:
All disputes, claims or controversies arising from or relating to this contract... shall be resolved by mandatory binding arbitration by one arbitrator selected by Seller with Buyer's consent.
*447 On November 2, 2009, Perez sued CMH Homes, Inc., Vanderbilt Mortgage and Finance, Inc., and Bruce Robinson Moore Jr. (hereinafter "CMH Homes") for fraud and violations of the Texas Debt Collection Act in the financing of his manufactured home. Perez filed a motion to compel arbitration on January 13, 2010. Although the parties agreed that the contract was governed by the Federal Arbitration Act and agreed to submit to arbitration, they could not agree to an arbitrator. After two months of disagreement, with both parties suggesting arbitrators in various correspondence, Perez's attorney declared an impasse.^1' On March 8, 2010, after a hearing, the trial court issued an order appointing Gilberto Hinojosa as arbitrator. Although the order was titled "Order on Plaintiffs Motion to Compel Arbitration," the only directive in the order was to name an arbitrator to preside over the dispute.
CMH Homes filed an interlocutory appeal pursuant to Texas Civil Practice and Remedies Code section 51.016, challenging the court's appointment of Gilberto Hinojosa as arbitrator. CMH Homes did not file a separate mandamus petition, but asked the court of appeals to consider its appeal as a mandamus proceeding in the alternative. See CMHHomes, Inc. v. Perez, 328 S.W.3d 592, 594 (Tex.App.-San Antonio 2010, pet. granted). The court of appeals determined that interlocutory
https://www.courtlistener.com/opinion/895326/cmh-homes-v-perez/? 11/24/2015 CMH HOMES v. Perez, 340 S.W.3d 444 - CourtListener.com Page 4 of 9
appeal was unavailable under Civil Practice and Remedies Code section 51.016 and dismissed the case for want of jurisdiction. Id. at 593.
B. Jurisdiction and Standard ofReview This court has jurisdiction to determine whether the court of appeals correctly decided its jurisdiction. See Badiga v. Lopez, 274S.W.3d681, 682 n. 1 (Tex. 2009) (citing Tex. Dep't ofCrim. Justice v. Simons, 140 S.W.3d 338, 343 n. 13 (Tex. 2004)). We review the court of appeals' determination of its jurisdiction de novo. Villafani v. Trejo, 251 S.W.3d 466, 467 (Tex.2008).
Unless a statute authorizes an interlocutory appeal, appellate courts generally only have jurisdiction over final judgments. See Lehmann v. Har-Con Corp., 39 S.W.3d 191. 195 (Tex.2001); see also JackB. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266. 272 (Tex. 1992) ("Interlocutory orders may be appealed only if permitted by statute." (citations omitted)). We strictly apply statutes granting interlocutory appeals because they are a narrow exception to the general rule that interlocutory orders are not immediately appealable. See, e.g., Tex. A&M Univ. Sys. v. *448 Koseoglu, 233 S.W.3d 835, 841 (Tex.2007); Bally Total Fitness Corp. v. Jackson, 53S.W.3d352, 355 (Tex.2001) (citation omitted). •
II. Discussion
First, we must determine whether the court of appeals lacked jurisdiction under Texas Civil Practice and Remedies Code section 51.016 of an interlocutory appeal of an order appointing an arbitrator. If section 51.016 does not provide jurisdiction, we then decide whether the court of appeals should have considered CMH Homes's interlocutory appeal as a petition for writ of mandamus.
A. Texas Civil Practice and Remedies Code Section 51.016
Prior to the Legislature's 2009 amendment to the Texas Arbitration Act (TAA), parties seeking to appeal an order refusing to compel arbitration would commonly file two separate appellate proceedings. Under the TAA, a party could bring an interlocutory appeal of an order denying arbitration. See TEX. CIV. PRAC. & REM. CODE § 171.098. Under the Federal Arbitration Act (FAA), a party could only challenge an order denying arbitration by mandamus. JackB. Anglin, 842 S.W.2d at 271-72. As a result, parallel proceedings were the norm in Texas arbitration disputes where parties were unsure which arbitration act applied. Although "unnecessarily expensive and cumbersome," such parallel proceedings were required. Id. at 272. Twice, this Court requested that the Legislature "consider amending the Texas Act to permit interlocutory appeals of orders issued pursuant to the Federal Act." Id.; In re D. Wilson Constr. Co., 196 S.W.3d774, 780 n. 4 (Tex.2006) (quoting JackB. Anglin, 842 S.W.2d at 272). In response, the Legislature added section 51.016 to the Civil Practice and Remedies Code in 2009. Act of May 27, 2009, 81st Leg., R. S., ch. 820, §§ 1, 3, 2009 Tex. Gen. Laws 2061 (codified at TEX. CIV. PRAC. & REM.CODE § 51.016). This is our first opportunity to construe the scope of the Legislature's remedial action.
Section 51.016 provides that a party may appeal a judgment or interlocutory order "under the same circumstances that an appeal from a federal district court's order or decision would be permitted by 9 U.S.C. Section 16." TEX. CIV. PRAC. & REM. CODE § 51.016. Section 16 of the FAA provides:
(a) An appeal may be taken from
(1) an order
(A) refusing a stay of any action under section 3 of this title,
(B) denying a petitionunder section4 of this title to order arbitration to proceed,
(C) denying an application under section 206 of this title to compel arbitration,
(D) confirmingor denying confirmation of an award or partial award, or
(E) modifying, correcting, or vacating an award;
(2) an interlocutory order granting, continuing,or modifying an injunctionagainst an arbitration that is subject to this title; or
https://www.courtlistener.com/opinion/895326/cmh-homes-v-perez/? 11/24/2015 CMH HOMES v. Perez, 340 S.W.3d 444 - CourtListener.com Page 5 of 9
(3) a final decision with respect to an arbitration that is subject to this title.
(b) Except as otherwise provided in section 1292(b) of title 28, an appeal may not be taken from an interlocutory order
(1) granting a stay of any action under section 3 of this title;
(2) directing arbitration to proceed under section 4 of this title;
*449 (3) compelling arbitration under section 206 of this title; or
(4) refusing to enjoin an arbitration that is subject to this title.
9 U.S.C. § 16. Civil Practice and Remedies Code section 51.016 expressly incorporates federal law. Thus, an interlocutory appeal in this case is permitted only if it would be permitted under the same circumstances in federal court under section 16. See Little v. Tex. Dep't ofCrim. Justice, 148 S.W.3d 374. 381-82 (Tex.2004) (examining federal law when interpreting state statute that incorporated federal statute).
In considering the scope of section 16's jurisdictional grant, we first determine the nature of the order being appealed. The order at issue is entitled "Order on Plaintiffs Motion to Compel Arbitration" and appoints Gilberto Hinojosa as arbitrator. Although Perez's motion to compel arbitration did not request that the trial court appoint an arbitrator, Perez submitted letters to the court administrator declaring an impasse and requesting the trial judge appoint an arbitrator.
At first glance, this order may appear to fit within section 16(b)(2) as an order "directing arbitration to proceed." 9 U.S.C. § 16(b)(2). The "Order on Plaintiffs Motion to Compel Arbitration" was issued in response to Perez's motion requesting that the trial court compel arbitration. But the substance of the order is the appointment of Gilberto Hinojosa as arbitrator. See Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992) ("[I]t is the character and function of an order that determine its classification."). While it may be argued that by appointing an arbitrator the order implicitly compels the parties to arbitration, the order does not explicitly grant Perez's motion to compel and does not explicitly compel the parties to arbitrate their dispute. There is no question that both parties agreed to arbitrate their dispute; the open question remaining was who would serve as the arbitrator. The purpose of the order was to answer that question.
Section 5 of the FAA explicitly permits a trial court to appoint an arbitrator under certain circumstances. 9 U.S.C. § 5. Where the parties have previously agreed to a method for selecting an arbitrator, the parties must follow that method. Id. However, if the agreed upon method breaks down and there is a lapse in appointing an arbitrator, the parties may petition the trial court to appoint an arbitrator. Id.
An order appointing an arbitrator under section 5 is neither listed in section 16(a) (where appeals may be taken) nor in section 16(b) (where appeals may not be taken). 9 U.S.C. § 16(a), (b). Even though section 16 is silent on the matter, CMH Homes argues that an appeal of an order appointing an arbitrator is "permitted by Section 16" because some federal circuit cases may have entertained interlocutory appeals regarding appointment of arbitrators pursuant to section 5J 'However, none of the cited cases mentions whether the appeal is interlocutory and all but one of the cited cases fails to specifically discuss itsjurisdictional basis orcite section \6P'Nat'l Am. Ins. Co. v. Transamerica *450 Occidental Life Ins. Co., 328 F.3d 462 (8th Cir.2003) (affirming the district court's selection of an arbitrator pursuant to section 5); ACEquip Ltd. v. Am. Eng'g Corp., 315 F.3d 151 (2d Cir.2003) (same); see also The Stop & Shop Supermarket Co. LLC v. UnitedFood & Commercial Workers Union Local 342, 246 Fed.Appx. 7 (2d Cir.2007) (same). The one exception, Universal Reinsurance, specifically establishes its jurisdiction "pursuant to 9 U.S.C. § 16(a)(3), which authorizes review of "a final decision with respect to an arbitration....'" Universal Reinsurance Corp. v. Allstate Ins. Co., 16F.3d 125, 126 (7th Cir.1994). Neither CMH Homes nor Perez has suggested that this appeal was anything other than interlocutory. Because the trial court did not enter a dismissal or otherwise dispose of all parties and claims, the order remains interlocutory and cannot be appealed under section 16(a)(3).[4]5ee In re GulfExploration, LLC, 289 S.W.3d 836, 839 (Tex.2009) ("[TJhere can be an appeal if the underlying case is dismissed." (citing Green TreeFin. Corp.-Ala. v. Randolph, 531 U.S. 79, 86-87, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000))). Although we presume a court always evaluates its jurisdiction before deciding a matter, these cases do not indicate whether their jurisdictional basis was section 16, and if so, whether the basis was section 16(a)(3) for final ordersJ51 The only federal circuit case that speaks directly to the jurisdictional issue is O.P.C. Farms Inc. v. Conopco Inc., which held that under section 16, the trial court's order appointing an arbitrator was not a final decision and was thus unappealable.161 154 F.3d 1047, 1048-49 (9th Cir. *451 1998). The court explained: "[T]he only basis for an appeal... that could even be plausibly argued is § 16(a)(3). It is, however, clear that the appointment of the third arbitrator is not the final decision in this case.... Consequently § 16 effectively deprives us of jurisdiction." Id.
https://www.courtlistener.com/opinion/895326/cmh-homes-v-perez/? 11/24/2015 CMH HOMES v. Perez, 340 S.W.3d 444 - CourtListener.com Page 6 of 9
The appellate jurisdiction of Texas courts in this case is based on federal law. The court of appeals had jurisdiction to considerthe trial court's order if "appeal... wouldbe permitted by 9 U.S.C. Section 16" in federal court. TEX. CIV. PRAC. & REM.CODE § 51.016. Because there is no apparent federal approach to judicial review under section 16 of orders appointing arbitrators, we will not extrapolate jurisdiction from a dearth of federal authority to allow an interlocutory appeal where the law is unclear and section 16 suggests otherwise.
Before the enactment of section 51.016, we specifically invited the Legislature '" [i]n the interests of promoting the policy considerations of rigorous and expedited enforcement of arbitration agreements,... to consider amending the Texas Act to permit interlocutory appeals of orders issued pursuant to the Federal Act.'" See In re D. Wilson, 196 S.W.3d at 780 n. 4 (quoting Jack B. Anglin, 842 S.W.2d at 272). While we agree the Legislature added section 51.016 to prevent unnecessary parallel proceedings, this inconsistency generally arose when parties were unsure whether the TAA or the FAA applied to their agreement. See JackB. Anglin, 842 S.W.2d at 272 ("[L]itigants who allege entitlement to arbitration under the Federal Act, and in the alternative, under the TexasAct, are burdened with the need to pursueparallelproceedingsan interlocutory appeal of the trial court's denial under the Texas Act, and a writ of mandamus from the denial under the Federal Act."). The Legislature in enacting section 51.016 has remedied this particular situation and enacted a policy change that promotes efficiency and common sense. See SidleyAustin Brown & Wood, LLPv. J.A. GreenDev. Corp., 327 S.W.3d 859, 862 (Tex. App.-Dallas 2010, no pet); Ranchers & Farmers Mut. Ins. Co. v. Stahlecker, No. 09-10-00286-CV, 2010 WL 4354020, at *1 (Tex. App.-Beaumont Nov. 4, 2010, no pet.) (mem.op.); In re Rio GrandeXarin II, Ltd., Nos. 13-10-00115- CV, 13-10-00116-CV, 2010 WL 2697145, at *3-4 (Tex.App.-Corpus Christi-Edinburg July 6, 2010, pet. dism'd) (mem.op.); 950 Corbindale, L.P. v. Kotts CapitalHoldings Ltd. P'ship, 316 S.W.3d 191, 195 n. 1 (Tex.App.-Houston [14th Dist.] 2010, no pet.).
Here, however, the issue is not which Act applies, but whether this particular type of order is appealable. Just as all interlocutory arbitration orders are not subject to appeal under the TAA, the Legislature in enacting section 51.016 did not intend tomake all interlocutory orders under the FAA appealable, only those permitted by section 16 ofthe FAA.^1 Our interpretation does not promote parallel proceedings of arbitration orders under the TAA and FAA and does not frustrate *452 the Legislature's intent in enacting section 51.016.
The court of appeals below correctly determined it was without jurisdiction to hear an interlocutory appeal pursuant to section 51.016. The only remaining appellate option for the parties at this juncture is mandamus relief.
B. Mandamus
Because Civil Practice and Remedies Code section 51.016 does not allow an interlocutory appeal of this type of order, CMH Homes requests in the alternative that we instruct the court of appeals to treat CMH Homes's appeal as a petition for writ of mandamus to prevent form from overriding substance.
Before the adoption of section 51.016, this Court held in In re Louisiana Pacific Corp. that a trial court's order appointing an arbitrator could be reviewed by mandamus. 972 S.W.2d63, 64 (Tex. 1998) (per curiam). The arbitration agreement in LouisianaPacific allowed each party to select an arbitrator. Id. at 63. After Louisiana Pacific withdrew its arbitrator due to the objection of the other party, the trial court improperly appointed an arbitrator pursuant to section 5 of the FAA. Id. at 64. We conditionally issued the writ "[bjecause the terms of the contract and the FAA allow[ed] Louisiana Pacific to choose an arbitrator" before the trial court intervened to name a replacement. Id. We explained the importance of contractual arbitrator selection: "Since its inception, one of the central purposes of the FAA has been to allow the parties to select their own arbitration panel if they choose to do so. ' Toward this end, it is desirable that the arbitration panel consist of arbitrators chosen by each of the parties.'" Id. at 65 (quoting Lobo & Co. v. PlymouthNavigation Co., 187F.Supp. 859, 860 (S.D.N. Y. I960)).
Although this court decided Louisiana Pacific when FAA interlocutory orders could only be reviewed by mandamus, the Legislature's addition of section 51.016 is of no effect here. As explained above, section 51.016 does not provide for interlocutory appeal of an order appointing an arbitrator. There is still no remedy by appeal because the FAA does not provide for the review of this type of order in state court. See id. at 65 ("LouisianaPacific has no adequateremedy by appeal because the FAA does not provide for review of the trial court's actions in state court."). Moreover, "[mjandamus is proper to correct a clear abuse of discretion when there is no adequate remedy by appeal, as when a party is erroneously denied its contracted-for arbitration rights under the FAA." In re D. Wilson, 196 S.W.3d at 780 (internal citation omitted); see also Jack B. Anglin, 842 S.W.2d at 272-73 (awarding mandamus relief where a party "would be deprived of the benefits of the arbitration clause it contracted for, and the purpose of providing a rapid, inexpensive alternative to traditional litigation would be defeated").
https://www.courtlistener.com/opinion/895326/cmh-homes-v-perez/? 11/24/2015 CMH HOMES v. Perez, 340 S.W.3d 444 - CourtListener.com Page 7 of 9
Perez argues mandamus review is inappropriate because CMH Homes failed to file a separate mandamus petition and, citing JackB. Anglin, contends that the court "may not enlarge [its] appellate jurisdiction absent legislative mandate." 842 S.W.2d at 272. However, CMH Homes invoked the court of appeals' appellate jurisdiction by specifically requesting that its appeal be treated as a mandamus petition. See Warwick Towers Council ofCo-Owners v. Park Warwick, L.P., 244 S.W.3d 838, 839 (Tex.2008) ("[T]he factor which determines whether jurisdiction has been conferred on the appellate court is not the form or substance of the bond, certificate or affidavit, but whether the instrument was filed in a bona fide attempt to invoke *453 appellate court jurisdiction." (internal quotations and citations omitted)); see also Linwoodv. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994) ("The court of appeals ... has jurisdiction over the appeal if a party files an instrument in a bona fide attempt to invoke the appellate court's jurisdiction."); GrandPrairie Indep. Sch. Dist. v. S. Parts Imps., 813 S.W.2d499. 500 (Tex. 1991) ("If the appellant timely files a document in a bona fide attempt to invoke the appellate court's jurisdiction, the court of appeals, on appellant's motion, must allow the appellant an opportunity to amend or refile the instrument required by law or our Rules to perfect the appeal").
Texas policy as ""embodied in our appellate rules ... disfavors disposing of appeals based upon harmless procedural defects.'" Higgins v. Randall Cnty. Sherifs Office, 257 S.W.3d 684, 688 (Tex.2008) (quoting Verburgtv. Dorner, 959 S.W.2d 615, 616 (Tex.1997)); see also TEXR.APP. P. 44.3 ("A court of appeals must not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities."). This Court has previously treated a petition for review as a petition for writ of mandamus where the appellant/relator specifically sought mandamus relief. Powell y. Stover, 165 S.W.3d 322. 324 n. 1 (Tex.2005). And it is our practice when confronted with parallel mandamus and appeal proceedings "to consolidate the two proceedings and render a decision disposing of both simultaneously." In re ValeroEnergy Corp., 968 S.W.2d 916, 917 (Tex. 1998).
Moreover, nothing in the procedures for interlocutory appeals and mandamus actions prevents us from treating this appeal as a petition for writ of mandamus. Appeals from interlocutory orders are accelerated, and an accelerated appeal is perfected by filing a notice of appeal within twenty days of the order. See TEX. R.APP. P. 26.1(b). Because mandamus is "controlled largely by equitable principles," there is no fixed deadline for filing original proceedings in the Texas Rules of Appellate Procedure. In re Int'l Profit Assocs., Inc., 21A S.W.3d672,676 (Tex. 2009) (citations omitted). An appeal complying with the rules governing an accelerated appeal would generally be timely for mandamus purposes. Additionally, briefs in mandamus actions and interlocutory appeals have the same content and page length requirements. Compare TEX.R.APP. P. 38.1, .4 (stating contents of brief and page length requirement for appeal to the courts of appeals), with TEX.R.APP. P. 52.3,.6 (stating contents of brief and page length requirement for original proceedings at the supreme court and courts of appeals). "[T]he interests of promoting the policy considerations of rigorous and expedited enforcement of arbitration agreements" would not be served by letting a technicality rule the dayy'JackB. Anglin, 842 S.W.2d at 272.
We will not unnecessarily waste the parties' time and further judicial resources by requiring CMH Homes to file a separate document with the title "petition for writ of mandamus" listed on the cover where the party has expressly requested mandamus treatment of its appeal in an uncertain legal environment. See Wagner & Brown, Ltd. v. Horwood, 53 S.W.3d 347, 351 (Tex.2001) (rejecting an "approach [that] catapults form over substance to deny appellate review on the merits"). *454 Because CMH Homes specifically requested mandamus relief in the court of appeals and preserved that issue in this Court, and because judicial efficiency militates against requiring CMH Homes to file a separate original proceeding, we instruct the court of appeals to consider this appeal as a petition for writ of mandamus. Today, we speak only to the propriety of mandamus review and not to the propriety of mandamus reliefin this particular case. Because the merits were not briefed to this Court, we do not decide whether the trial judge improperly appointed an arbitrator.
III. Conclusion
We hold that Texas Civil Practice and Remedies Code section 51.016 does not permit interlocutory appeal from an order appointing an arbitrator. However, this appeal may properly be considered as a petition for writ of mandamus, as CMH Homes requested. The court of appeals erred in dismissing CMH Homes's appealfor lack of jurisdiction. Accordingly, we reverse and remand to the court of appeals for further proceedings consistent with this opinion.
NOTES
[1] After receivingPerez's motion to compel arbitration, CMH Homes presented three names for consideration as potential arbitrators. Perez rejected the suggested arbitrators and presented CMHHomeswith a proposed agreed order that compelled the parties to arbitrationand left a blank for the court to appoint an arbitrator. CMH Homes did not agree to the proposedorder and offeredto submit two more arbitrator namesfor Perez'sconsideration. Instead, Perez sent a copy of the
https://www.courtlistener.com/opinion/895326/cmh-homes-v-perez/? 11/24/2015 CMH HOMES v. Perez, 340 S.W.3d 444 - CourtListener.com Page 8 of 9
proposed order to the court and suggested three possible arbitrators for the court to appoint. In response, CMH Homes sent a letter to the court explaining that under the arbitration provision, CMH Homes, not Perez, has the right to designate the arbitrator and suggested two more arbitrators. The letter also indicates that the parties were considering one of the two arbitrators, Donato Ramos, but Perez was concerned about conflicts of interests because his attorneys had financial connections to Ramos. The court held a hearing on February 9, 2010 where the parties appeared to agree to the appointment of Ramos. However, when the parties could not agree to a waiver of conflicts for Ramos, the agreement fell apart. Perez notified the court that they could not reach an agreed waiver and again asked the court to appoint an arbitrator and re submitted the three names previously suggested, including Gilberto Hinojosa.
[2] CMH Homes relies upon the following cases: Nat'lAm. Ins. Co. v. Transamerica Occidental Life Ins. Co., 328 F.3d 462 (8th Cir. 2003); ACEquip Ltd. v. Am. Eng'g Corp., 315F.3d 151 (2d Cir.2003); UniversalReinsurance Corp. v. Allstate Ins. Co., 16F.3dl25 (7th Cir. 1994); ATSA ofCal, Inc. v. Cont'lIns. Co., 754 F.2d 1394 (9th Cir. 1985).
[3] CMH Homes also cites the Ninth Circuit case ATSA ofCalifornia, Inc. v. ContinentalInsurance Co., 754 F.2d 1394 (9th Cir. 1985). But because this case was decided before section 16 was enacted, it does not interpret section 16.
[4] In state court, cases are typically stayed pending arbitration rather than dismissed, as frequently is the case in federal court. In In re Gulf Exploration, LLC, we explained:
Arbitrability is often the only issue in federal court because nondiverse parties may prevent removal of the underlying case from state court; in such cases, even a stay order will be considered final if the federal action is effectively over. But in the state courts, disputes about arbitrability and the merits must usually proceed in a single court under rules of dominant jurisdiction.
Accordingly, a stay is generally the only appropriate order for a state court with jurisdiction of all issues. Indeed, the Texas Arbitration Act states that "[a]n order compelling arbitration must include a stay" of the underlying litigation. During arbitration, a court order may be needed to replace an arbitrator, compel attendance of witnesses, or direct arbitrators to proceed promptly; after arbitration, a court order is needed to confirm, modify, or vacate the arbitration award. Consequently, dismissal would usually be inappropriate because the trial court cannot dispose of all claims and all parties until arbitration is completed.
289 S.W.3d 836, 840-41 (Tex.2009) (citations omitted).
[5] The appellants in NationalAmerican and ACEquip represented to the circuit courts that the order being appealed was final. See Appellant'sBrief at 3, ACEquip Ltd. v. Am. Eng'gCorp., 315F.3d 151 (2d Cir.2003);Appellant'sBrief at 1, Nat'l Am. Ins. Co. v. Transamerica Occidental LifeIns. Co., 328F.3d462 (8th Cir.2003). The appellees did not challenge this assertion in ACEquip, see Brief of Plaintiff-Appellee, ACEquip Ltd. v. Am. Eng'g Corp., 315 F.3d 151 (2d Cir.2003), and appearnot to have challenged the assertion in National American, see Reply Brief of Appellant, Nat'l Am. Ins. Co. v. Transamerica Occidental Life Ins. Co., 328F.3d 462 (8th Cir.2003). In both cases,the partiestreatedthe order appointing an arbitrator as final, and the courts of appeals appear to have taken the parties at their word.
[6] In its analysis, the court in O.P.C. Farms concluded that an order appointing an arbitrator is "embedded" in the case. O.P.C. FarmsInc. v. Conopco Inc., 154 F.3d 1047, 1049 (9th Cir. 1998) (citation omitted). However, the United States Supreme Courteliminated the distinction betweenembedded and independent proceedings in Green Tree, which may raise questions aboutthe precedential value of this case. See Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 87-89,121 S.Ct. 513, 148L.Ed.2d 373 (2000).
[7] The language of section51.016, and therefore FAA section 16, also indicates the Legislature did not intendto create a comprehensive appellate scheme makingall FAA orders appealable through interlocutory appeal, but insteadfocused on denials of arbitration. See TEX. CIV. PRAC. & REM.CODE § 51.016; 9 U.S.C. § 16; In re Gulf Exploration, 289 S.W.3d at 839 ("[T]he FAA 'generally permits immediate appeal of orders hostile to arbitration ... butbars appeal of interlocutory ordersfavorable to arbitration.'" (quoting Green Tree, 531 U.S. at 86, 121 S.Ct. 513)); see alsoMay v. Higbee Co., 372 F.3d 757, 762 (5th Cir.2004) (noting the "general, congressionally mandated rule that anti-arbitration decisions are immediately appealable under § 16(a)(1)").
[8] Although wenote that CMH Homes's petition was notcertified at this Court asrequired by Texas Rule of Appellate Procedure 52.3(j), we areconfident that CMH Homes willfully comply with Rule 52on remand to thecourt of appeals.
About FAQ Tour
https://www.courtlistener.com/opinion/895326/cmh-homes-v-perez/? 11/24/2015 APPEAL No. 14-14-00410-CV
DOV AVNI KAMINETZKY a/k/a DOV K. AVNI )( Appellant )( v. )( DOSOHS I, LTD, )( Appellee )( [APPEAL of 5-15-14 FROM #1997-40590/11 JDC;HARRIS COUNTY.TX
EXHIBIT No. "/6" TO APPELLANT'S ORIGINAL MOTION [ of 11-25-15 ]TO RECALL
TO BE DECIDED, IF NEEDED-BY MANDAMUS to TX SUPREME COURT in Re D & KW Family, L.P., - CourtListener.com Page 2 of 11
L A g* B O Y
FRIDAY
i \ Now Through 1 }Monday; |/Nov. 30th! : ree Law Proiect a federally-recognized 501(c)(3) non-profit. We rely heavily on donations for our ads, we ask for a $ 10 donation each year.
ily, L.P., 01-11-00276-CV (Tex. App. 2012) e a favorite.
(did
Col Filed: August 9th, 2012
Docket Number: 01-11-00276-CV
Fingerprint: 56fedba9ca5516198cb Ib2d3b 1aaa720dfbb2db8
Opinion issued August 9, 2012
Court of Appeals For The
First District of Texas
NO. 01-11-00276-CV
IN RE D S KW FAMILY, L.P., Relator
Original Proceeding on Petition for Writ of Mandamus
Relator D & KW Family, L.P. intervened in the underlying case several
years after a final judgment had issued in order to file a motion to enter judgment
nunc pro tunc* After the trial court denied the motion, D s KW filed a notice of
https://www.courtlistener.eom/opinion/3122204/in-re-d-kw-family-lp/? 11/24/2015 in Re D & KW Family, L.P., - CourtListener.com Page 3 of 11
appeal. Kimberly Kay Bidinger, also an intervenor in the underlying case, moved
+
The underlying case is Aldine Independent School District v. Ranch Town, Inc., No. 94-08239 in the 151st District Court of Harris County, Texas, the Honorable Mike Engelhart, presiding, to dismiss D S KW's appeal for want of jurisdiction. In its response to the motion
to dismiss, D & KW specifically requests that this court treat its appeal as a
mandamus petition, and it filed with that response a document styled as a petition
for writ of mandamus.
We conclude that D & KW has invoked this court's original jurisdiction and
we treat the appeal as a petition for writ of mandamus. Accordingly, Bidinger's
motion to dismiss is denied. On the merits, we deny D & KW's petition for writ of
mandamus.
Background
In January 1994, Aldine Independent School District ("AISD") sued Ranch
Town, Inc., for unpaid property taxes on several lots in a residential subdivision.
Harris County intervened in the suit and adopted AISD's petition.
In October of the same year, a master in chancery appointed to the case filed
a report in which it recommended that judgment be granted in the case. The report
does not reflect the substance of the master's recommendation. In November,
Ranch Town, AISD, and Harris County entered into an agreed judgment that was
signed by the trial court. The agreed judgment ordered Ranch Town to pay
$26,434.45 to AISD and $18,041.10 to Harris County, plus the taxing authorities'
attorney's fees and court costs. It also specified that if Ranch Town defaulted on
its payment obligations, the court would issue an order directing the Harris County
2 Sheriff or Constable to seize and sell the property. The agreed judgment described
the property and rights of way thereon as follows:
LOTS ONE HUNDRED THIRTY-NINE (139) THROUGH ONE HUNDRED FORTY-TWO, (142), BLOCK NINE (9), ALDINE MOBILEHOME CITY, AN UNRECORDED SUBDIVISION IN HARRIS COUNTY, TEXAS, OUT OF THE EAST FIFTY (50) ACRES, MORE OR LESS, AND ALL RIGHTS OF WAYS WITHIN SUCH FIFTY (50) ACRES, IN THE JOSEPH MCGINNIS SURVEY, ABSTRACT 587, SAVE AND EXCEPT THAT PART OF THE FIFTY (50) ACRES CONVEYED TO THE STATE OF TEXAS, AND BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS IN ATTACHED EXHIBIT "A" AND SAVE AND EXCEPT THOSE PROPERTIES PREVIOUSLY CONVEYED AND DESCRIBED IN DEEDS RECORDED AS FILM CODE NUMBERS XXX-XX-XXXX, XXX-XX-XXXX, XXX-XX-XXXX, XXX-XX-XXXX, XXX-XX-XXXX, XXX-XX-XXXX, AND XXX-XX-XXXX, IN THE DEED RECORDS OF HARRIS COUNTY, TEXAS, SAID LOTS BEING SHOWN FOR REFERENCE PURPOSES ONLY ON THE PLAT ATTACHED AS EXHIBIT "B".
(Emphasis supplied.) Exhibit A, as referenced in the agreed judgment, is a metes
and bounds description of the property; however, it does not describe the rights of
way on the property. Exhibit B is a plat showing the lots within the subdivision
and several rights of way, including a street labeled "Cherilynn Lane."
When Ranch Town did not pay the agreed judgment, the trial court ordered
https://www.courtlistener.eom/opinion/3122204/in-re-d-kw-family-lp/? 11/24/2015 in Re D & KW Family, L.P., - CourtListener.com Page 4 of 11
that the property be sold. AISD purchased the property at the foreclosure sale.
D S KW subsequently purchased the property at a constable's sale. Aside from
the absence of any reference to a plat, the constable's deed described the property
conveyed to D S KW exactly as it was described in the 1994 agreed judgment, and
3 it included as an attached exhibit the metes and bounds description of the property,
but not the rights of way.
In a separate case, D s KW brought trespass claims against Bidinger and
her husband, Alfredo Arturo Ballestas, who together owned an adjacent property
accessible by "Cherilyn Lane." See D s KW Family, L.P. v. Bidinger, No. 01-08-
00260-CV,
2009 WL 1635216
, at *3 (Tex. App.—Houston [1st Dist.] June 11,
2009, pet. denied) (mem. op.) ("D & KW I"). D s KW claimed to own rights of
way encompassing Cherilyn Lane, and it sought an injunction preventing Bidinger
and Ballestas from accessing their property by way of that road. See id. Bidinger
and Ballestas counterclaimed for an implied easement and easement by necessity.
See id. The trial court in that case resolved cross-motions for summary judgment
in favor of Bidinger and Ballestas, and D s KW appealed to this court. Id.
A key issue in that appeal was whether D s KW had acquired good and
perfect title to the Cherilyn Lane right of way. Id. at *7. In analyzing the
description of the rights of way in D S KW's deed, this court stated the following:
The grant of "all rights of way" within the 50-acre tract is legally insufficient to confer fee simple title to Cherilyn Lane for several reasons. Within the deed itself, there is a purported grant of all rights-of-way, but the metes and bounds description attached to the deed does not refer to any right-of-way. The written instrument that purports to convey title does not, therefore, furnish within itself, or by reference to some other existing writing, the means or data by which the land conveyed may be identified with reasonable certainty. The conveyance of "all rights of way" fails because of a lack of metes and bounds description or any other existing writing from which to 4 determine the location, size, and boundaries of the rights of way with the requisite reasonable certainty.
Further, the language of conveyance of "all rights of way" by the constable's deed in this case is much like a conveyance of an unidentified portion of a larger, identifiable tract, which the Supreme Court of Texas has long held to be insufficient.
Finally, the constable's deed does not provide any means by which a surveyor could locate and determine the rights-of-way. Indeed, Bidinger's and Ballestas's summary-judgment evidence includes the affidavit of a professional surveyor who attested to his inability to rely on the descriptions provided by the constable's deed and supporting exhibit to aid in determining the property conveyed. D & KW responded by providing the affidavit of another professional surveyor who stated that he was able to determine the metes and bounds of the Cherilyn Lane right-of-way by referring to the tax plats in the Assessor's Block Book for Harris County. To be competent, evidence relied on to locate, size, and determine boundaries must refer to existing writings such as tax tract maps. The critical distinction here is the lack of an existing writing that refers to the tax plat. In this case, there is only the opinion of D & KW's professional surveyor that refers to the tax plat.
https://www.courtlistener.com/opmion/3122204/in-re-d-kw-family-lp/? 11/24/2015 in Re D & KW Family, L.P., - CourtListener.com Page 5 of 11
Id. at *9 (emphasis, footnote, quotation marks, and citations omitted). This court
affirmed the summary judgment in favor of Bidinger and Ballestas. Id. at *10.
Following disposition of that appeal, AISD filed a motion for entry of a final
judgment nunc pro tunc in the 1994 tax delinquency suit. AISD's proposed
judgment nunc pro tunc would have more particularly described the metes and
bounds of the rights of way over the property that AISD foreclosed upon and
subsequently conveyed to D s KW.
Bidinger intervened to oppose the request for judgment nunc pro tunc.
D S KW also intervened, and it joined and adopted AISD's motion. AISD
subsequently withdrew its motion, thereby leaving only D s KW to prosecute it.
A tax master filed a report recommending that the motion for entry of judgment
nunc pro tunc be denied. See TEX. TAX CODE ANN. § 33.71 (West 2008)
(authorizing appointments of tax masters in tax delinquency suits).
D & KW appealed the tax master's recommendation to the district court.
See TEX. TAX CODE ANN. § 33.74 (authorizing appeals from tax master's
recommendation to referring court). Following a hearing, the trial court signed an
order denying D & KW's motion for entry of judgment nunc pro tunc. D s KW
filed notice of appeal from that order.
Analysis
I. Jurisdiction
In its original brief, D s KW styled its application to this court as an appeal
of the trial court's order denying entry of judgment nunc pro tunc. Bidinger filed a
motion to dismiss the appeal for want of jurisdiction, contending that this court
lacks appellate jurisdiction over such an order. See TEX. R. APP. P. 42.3. Without
disputing this point, D s KW responded by asking that we treat its application as a
petition for writ of mandamus, and it also filed with its response a document styled
as such.
6 Appellate courts generally have jurisdiction only over final judgments,
although a statute can authorize appeals from specific types of orders. CMH
Homes v. Perez,
, 447 (Tex. 2011); see also, e.g., TEX. CIV. PRAC.
& REM. CODE ANN. § 51.014 (West Supp. 2011) (authorizing appeals from certain
interlocutory orders). An order denying a motion for entry of judgment nunc pro
tunc is not an appealable, final judgment. Shadowbrook Apartments v. Abu-
Ahmad,
783S.W.2d210
https://www.courtlistener.com/opinion/3122204/in-re-d-kw-family-lp/? 11/24/2015 in Re D & KW Family, L.P., - CourtListener.com Page 6 of 11
, 211 (Tex. 1990) (per curiam). Nor does any statute
authorize an appeal from such an order. See, e.g., TEX. CIV. PRAC. s REM. CODE
ANN. § 51.014. Therefore, appellate courts must ordinarily dismiss for want of
jurisdiction appeals that challenge an order denying judgment nunc pro tunc. See,
e.g., Shadowbrook Apartments, 783 S.W.2d at 211; Gonzalez v. Dep't of Family &
Protective Servs., No. 01-11-00205-CV,
2012 WL 1564664
, at *3 (Tex. App.-
Houston [1st Dist.] May 3, 2012, no pet.) (mem. op.). Because D S KW appeals
an order denying judgment nunc pro tunc and such an order is not appealable, we
hold that this court lacks jurisdiction to consider the appeal as a direct appeal. See
Shadowbrook Apartments, 783 S.W.2d at 211.
Nevertheless, in an appropriate case, we may treat an appeal as a petition for
writ of mandamus. See CMH Homes, 340 S.W.3d at 452-53. An appellant who
specifically requests that its appeal be treated as a mandamus petition invokes this
court's original jurisdiction. Id.; see also TEX. GOV'T CODE ANN. § 22.221(b)
7 (West 2004) (authorizing courts of appeals to issue writs of mandamus). In CMH
(Tex. 2011), the Supreme Court of Texas held
that an appellant who filed an appeal from an unappealable order was nevertheless
entitled to have its appeal treated as a petition for writ of mandamus because the
appellant specifically requested mandamus relief and because requiring the
appellant to file a separate document entitled "petition for writ of mandamus"
would "unnecessarily waste the parties' time and further judicial resources." CMH
Homes, 340 S.W.3d at 453-54.
Likewise, in this case, requiring D S KW to initiate a separate mandamus
proceeding would unnecessarily waste the parties' time and further judicial
resources. D s-KW not only specifically requested mandamus relief, it also
submitted a document in the form of a petition for writ of mandamus. Moreover,
the necessary trial record has already been filed with this court and the parties have
briefed the merits of the case. Because the order appealed from is unappealable,
D & KW has specifically requested mandamus relief, and treating this appeal as a
petition for writ of mandamus advances the interest of judicial efficiency, we will
consider this appeal as a petition for writ of mandamus. See id.; see also In re
Bridges,
28 S.W.3d 191
, 195-96 (Tex. App.-Fort Worth 2000, orig. proceeding)
(holding that mandamus relief was available and appropriate when trial court
erroneously denied motion for entry of order nunc pro tunc), cited with approval in
https://www.courtlistener.com/opinion/3122204/in-re-d-kw-family-lp/? 11/24/2015 in Re D & KW Family, L.P., - CourtListener.com Page 7 of 11
In re Daredia,
317S.W.3d247
, 249-50 (Tex. 2010) (per curiam, orig.
proceeding). We deny Bidinger's motion to dismiss for want of jurisdiction.
II. Mandamus
Mandamus relief is available if the relator establishes a clear abuse of
discretion for which there is no adequate remedy by appeal. In re Prudential Ins.
Co. of Am.,
, 135-36 (Tex. 2004) (orig. proceeding). A trial court
has no discretion in determining what the law is or applying the law to the facts.
Walker v. Packer,
827 S.W.2d 833
, 840 (Tex. 1992) (orig. proceeding). If the trial
court fails to analyze or apply the law correctly, the trial court abuses its discretion.
Id. With respect to the resolution of factual issues, however, the reviewing court
may not substitute its judgment for that of the trial court. Id. at 839. The relator
must establish that the trial court could have reasonably reached only one
conclusion. Id. at 840. As previously discussed, D S KW does not have recourse
to an appeal to challenge the trial court's denial of its motion. Consequently, the
only remaining question is whether D & KW has established that the trial court has
clearly abused its discretion. See Prudential, 148 S.W.3d at 135-36.
D & KW argues that the trial court clearly abused its discretion in refusing
to render a judgment nunc pro tunc because it was a clerical error, rather than a
judicial one, to have omitted in the 1994 agreed judgment a description of the
metes and bounds of the rights of way over its property. D s KW contends that
9 when the agreed judgment described the foreclosed property to include "ALL
RIGHTS OF WAYS WITHIN SUCH FIFTY (50) ACRES," the trial court did not
intend to render a judgment reflecting a legally insufficient description of the rights
of way. It asserts that the metes and bounds description is readily determined by
reference to the tax plat filed in the Harris County Assessor's block book and that
adding the pertinent description involves no judicial reasoning.
Bidinger points out that the judgment at issue is an agreed judgment. She
contends that the judgment was drafted by one of the parties' attorneys and argues
that the error alleged by D & KW became part of the court's judgment as rendered,
thereby making it a judicial error. Bidinger also contends that entering the
judgment nunc pro tunc would require the trial court to exercise its judicial
reasoning to determine whether AISD intended to sue for all rights of way or only
certain rights of way. Furthermore, Bidinger argues that in D s KW I, this court
https://www.courtlistener.com/opinion/3122204/in-re-d-kw-family-lp/? 11/24/2015 in Re D & KW Family, L.P., - CourtListener.com Page 8 of 11
specifically rejected the possibility of using the tax plat to supply the metes and
bounds of the rights of way.
Absent a motion that extends the trial court's plenary power, the trial court
has plenary power to modify its final judgment or order within 30 days of signing
it, and the court loses jurisdiction to modify its judgment after the 30 days has run.
TEX. R. CIV. P. 32 9b(d); Martin v. Tex. Dep't of Family & Protective Servs.,
176S.W.3d390
, 392 (Tex. App.—Houston [1st Dist.] 2004, no pet.). An exception to
10 this general rule is that the trial court can correct clerical errors by judgment nunc
pro tunc even after it loses plenary power. Escobar v. Escobar,
711S.W.2d230
231 (Tex. 1986) . The judgment nunc pro tunc may be entered at any time for this
purpose. TEX. R. CIV. P. 316 S 329b(f); Barton v. Gillespie,
, 126
(Tex. App.—Houston [1st Dist.] 2005, no pet.). "A clerical error is a discrepancy
between the entry of a judgment in the record and the judgment that was actually
rendered." Barton, 178 S.W.3d at 126. Rendition occurs when the trial court's
decision is officially announced either by a signed memorandum filed with the
clerk of the court or orally in open court. Id.
Unlike with clerical errors, the trial court cannot correct a judicial error after
the expiration of plenary power by entering a judgment nunc pro tunc. Escobar,
711 S.W.2d at 231-32. A judicial error is one that arises from a mistake of law or
fact that requires judicial reasoning to correct, and it occurs in the rendering, rather
than the entering, of the judgment. Barton, 178 S.W.3d at 126. "Thus, even if the
court renders incorrectly, it cannot alter a written judgment which precisely reflects
the incorrect rendition." Escobar, 711 S.W.2d at 232. Stated another way, "if the
judgment entered is the same as the judgment rendered, regardless of whether the
rendition was incorrect, a trial court has no nunc pro tunc power to correct or
modify the entered judgment after its plenary jurisdiction expires." Hernandez v.
Lopez,
, 187 (Tex. App.-Houston [1st Dist.) 2009, no pet.) (op.
11 on rehearing). "A judgment rendered to correct a judicial error after plenary power
has expired is void." Id. at 185 (citing Dikeman v. Snell,
490 S.W.2d 183
, 186
(Tex. 1973)).
https://www.courtlistener.com/opinion/3122204/in-re-d-kw-family-lp/? 11/24/2015 in Re D & KW Family, L.P., - CourtListener.com Page 9 of 11
Whether an error in a judgment is clerical or judicial is a question of law.
Escobar, 711 S.W.2d at 232. In order to make a nunc pro tunc correction or
modification of a judgment, the evidence must be clear and convincing that a
clerical error was made, that is, that the entered judgment differs from the
judgment actually rendered. See Barton, 178 S.W.3d at 127; see also America's
Favorite Chicken v. Galvan,
897 S.W.2d 874
, 877 (Tex. App.-San Antonio 1995,
writ denied) ("In order to issue a judgment nunc pro tunc, there must be some
evidence that the judgment the trial judge actually rendered is not correctly
represented in the judgment she signed and entered of record."). Evidence of the
judgment actually rendered may derive from oral testimony of witnesses, written
documents, previous judgments, docket entries, or the trial judge's personal
recollection. Barton, 178 S.W.3d at 127.
When someone other than the trial court prepares a proposed written order
or judgment that reflects a mistake, and the trial court, without having already
rendered judgment, signs the proposed order or judgment, the mistake becomes
part of the court's judgment as actually rendered and it is therefore a judicial error
rather than a clerical error. See, e.g., Daredia, 317 S.W.3d at 250. The foregoing
12 rule is illustrated by Hernandez v. Lopez,
(Tex. App.—Houston
[1st Dist.] 2009, no pet.). In that case, a child-support enforcement hearing was
held before a master. Hernandez, 288 S.W.3d at 182. The mother, the father, and
the Office of the Attorney General of Texas signed an agreed order reflecting a
mistake, specifically, a finding that the father was in arrears in the amount of
$51,000.00 as of December 31, 2004, a date eleven months in the future from the
time when the agreed order was signed. Id. The trial court then signed the agreed
order. Id. There was no record of any hearing at the time the trial court signed it.
Id.
Two years later, the Office of the Attorney General moved for judgment
nunc pro tunc, alleging that the date reflected in the agreed order should have read
December 31, 2003. Id. at 182-83. The trial court granted the motion and entered
judgment nunc pro tunc. Id. at 183. On appeal, this court stated:
The terms of the Agreed Order were set forth by the parties, and the Agreed Order states that the master submitted "the proposed" Agreed Order to the trial court and recommended its approval. On January 27, 2004, when the trial court signed the Agreed Order adopting the master's recommendation as the order of the court, rendition of the judgment occurred. The error at issue herein, if any, occurred in the rendering of the judgment.
Id. at 185-86 (emphasis, footnote, and citations omitted). Finding no evidence in
https://www.courtlistener.com/opinion/3122204/in-re-d-kw-family-lp/? 11/24/2015 in Re D & KW Family, L.P., - CourtListener.com Page 10 of 11
the record that the trial court actually rendered judgment before signing the agreed
order, this court vacated the judgment nunc pro tunc. Id. at 187-88.
13 This case is similar to Hernandez. AISD's petition described the rights of
way on the property as "ALL RIGHTS OF WAYS WITHIN SUCH FIFTY (50)
ACRES," without greater detail. The master's report recommended that
"judgment" should be granted in the case, without specifying what that judgment
should be. The trial court signed an agreed proposed judgment, describing the
rights of way only as "ALL RIGHTS OF WAYS WITHIN SUCH FIFTY (50)
ACRES." Counsel for all parties signed the agreed judgment beneath the words
"agreed as to substance and form."
There is no indication in the record that the trial court actually rendered,
orally or otherwise, a judgment different from the one it signed and entered.
Accordingly, we hold that the evidence is not clear and convincing that the
judgment reflects a clerical error. See Barton, 178 S.W.3d at 127; cf. Hernandez,
288 S.W.3d at 187 ("[T]here is no evidence in the record that the trial court
intended to do anything other than grant the motion exactly as the parties
requested, and there is no evidence in the record before us with regard to any prior
rendition of judgment."). The fact that the agreed judgment fails to more
particularly describe the metes and bounds of the rights of way does not, by itself,
suffice to show that the alleged error is clerical rather than judicial. Cf. Hernandez,
288 S.W.3d at 187 ("[I]t is of no consequence which date [the mother] may have
intended in the Agreed Order that she signed or whether this Court can agree that
14 the date that [the mother] now asserts is, as a matter of logic, the date everyone . . .
must have intended.").
Conclusion
Having failed to present clear and convincing evidence that the alleged error
in the agreed judgment was clerical rather than judicial, D & KW has not
demonstrated that the trial court clearly abused its discretion in denying its motion
for entry of judgment nunc pro tunc. Accordingly, we deny the petition for writ of
Michael Massengale Justice
Panel consists of Justices Bland, Massengale, and Brown.
About FAQ
https://www.courtlistener.eom/opinion/3122204/in-re-d-kw-family-lp/? 11/24/2015 in Re D & KW Family, L.P., - CourtListener.com Page 1 of 11
Toggle navigation Court ListenerCL • About • FAQ • Tour • Coverage • Sign in / Register
(edit) f
Cited By (1)
• Dianna Jones v. Currie A. McRee. IV and Ed Baranowski,...
Full List of Citations©
Authorities (12)
• America's Favorite Chicken Co. v. Galvan. 897 S.W.2d 874 (Tex. App. 1995) • Barton v. Gillespie. 178 S.W.3d 121 (Tex. App. 2005) • CMH HOMES v. Perez. 340 S.W.3d 444 (Tex. 2011) • Dikeman v. Snell. 490 S.W.2d 183 (Tex. 1973) • Escobar v. Escobar. 711 S.W.2d 230 (Tex. 1986)
f^ Jj_ Ql Ihttps:/Awww.courtlistene7|
https://www.courtlistener.com/opinion/3122204/in-re-d-kw-family-lp/? 11/24/2015 tfa»*-'*'w*«MWJ^^ i-E^qsU^^h^MU. ,*.^r^iT.t*«Jj^l^Anai^;r^fl,irrfT»tiil
U.S. POSTAGE « $.49 ,
77002 Date ol sale _ U.S. POSTAGE 11/25/15 * P/- $1.19 06 2S00 W 08282341 OT FCM LG ENV 1 ~ 77002 Date of sale S 511/25/15 * If. 806 2S00 W 3 A i |) *• S08282341 w
•^eS &» *j PS® FDRST-CLASS MNL® CERT MAIL RSTRDEL 0 lb. 10.70 oz.
4 ^^ tb ,
frM> %£ » ^4 « v ?',
SHIP «1> «/ Jf * " * J > p ^ to: 14TH COURT OF APPEALS ?« 301 FANNIN ST HOUSTON TX 77002-2066
t 4* ' USPS OERTDFDED MlM=TM *; h ** w /
w4 9569 3000 1976 5329 000116
ft. <4 > *
I I III! I II 111
Dov Avni Kaminetzky v. Dosohs I, LTD (Dov Avni Kaminetzky v. Dosohs I, LTD) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.