Garry L. Rollins and Carla D. Rollins v. Texas College and MPF Investments, LLC D/B/A "A-1 Rent All"

Court of Appeals of Texas·Decided July 7, 2015·No. 12-15-00121-CV·Published

Opinion

ACCEPTED 12-15-00121-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 7/7/2015 12:50:12 PM CATHY LUSK CLERK

No. 12-15-00121-CV

FILED IN IN THE COURT OF APPEALS 12th COURT OF APPEALS TYLER, TEXAS FOR THE TWELFTH DISTRICT OF TEXAS 7/7/2015 12:50:12 PM TYLER, TEXAS CATHY S. LUSK

Clerk

GARRY L. ROLLINS AND CARLA D. ROLLINS, Appellants

V.

TEXAS COLLEGE AND MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL,"

Appellees

Appeal from Cause No. 13-3353-A In the 7th District Court of Smith County, Texas

APPELLANTS’ UNOPPOSED MOTION TO CORRECT CLERK’S RECORD

TO THE HONORABLE COURT OF APPEALS:

Appellants, Gary L. Rollins and Carla Rollins request that this

Court issue a letter directing the trial court clerk to correct the

clerk’s record and to re-file the record in proper format and would

shows as follows:

Appellees are Texas College and MPF Investments, LLC d/b/a

“A-1 Rent All."

1. OMITTED ITEMS

Texas Rule of Appellate Procedure 34.5(c)(1) provides:

(c) Supplementation. (1) If a relevant item has been omitted from the clerk's record, the trial court, the appellate court, or any party may by letter direct the trial court clerk to prepare, certify, and file in the appellate court a supplement containing the omitted item.

Tex. R. App. P. 34.5(c)(1). The parties have all previously made

letter requests per this rule to the trial court clerk to ensure the

record is complete.

2. DEFECTS IN THE RECORD

Texas Rule of Appellate Procedure 34.5 (d) provides:

(d) Defects or Inaccuracies. If the clerk's record is defective or inaccurate, the appellate clerk must inform the trial court clerk of the defect or inaccuracy and instruct the clerk to make the correction.

Tex. R. App. P. 34.5(d).

In preparing their brief, Appellants’ have determined that the

vast majority of the items included in the current clerk’s record are

not text-searchable, and not bookmarked at the first page. Because

of the way they the documents are formatted, an OCR attempt at

our end failed. This format is required by the Texas Supreme

Court’s Order Directing the form of the Appellate Record, Rule 1.2

that reads:

1.2. Filing an Electronic Clerk's Record. Unless the clerk receives permission from the appellate court to file the record in paper form, the clerk must file the record electronically. When filing a clerk's record in electronic form, the trial court clerk must:

(a) file each computer file in text-searchable Portable Document Format (PDF);

(b) create electronic bookmarks to mark the first page of each document in the clerk's record; ….

Tex. R. App. P. Appendix C.

Below is an exemplar of how the bookmarks (on the left in

grey) are supposed to appear. This exemplar was taken from a

clerk training video provided on this Court’s website:

The exemplar clearly shows each document bookmarked with a

separate descriptive title.

Below is a view of the clerk’s record vol. 1 in this case:

By looking at the left, one can clearly see that the entire volume is

marked with only one book mark, when in fact, the volume contains

many separate documents. This is evidenced by the clerk’s own

index for volume 1 shown below:

Appellant requests this Court to order the trial court clerk to

bookmark the individual documents. Because each party is

required to furnish a bookmarked Appendix with its brief, this will

eliminate inconsistencies in the appendices of the parties, and

eliminate undue burden of document conversion on the part of the

Appellants.

Furthermore, although Appellant is unable to represent the

problem graphically, the documents contained in the record are not

text-searchable as required by the Supreme Court’s order.

Appellants request this Court to order the trial court clerk to file the record (to the extent feasible) in text-searchable format. Again, this

will reduce the burden on the Appellants and Appellees when

creating their appendices for this Court, which must be text-

searchable as well. This Courts website has a video which can be

of great use by the clerk in learning how to make the record comply

with the Supreme Court’s order:

http://www.txcourts.gov/12thcoa/practice-before-the-

court/electronic-filing/clerks-and-court-reporters.aspx

It is suggested that this Court direct the clerk to comply with the

video in preparing the record.

WHEREFORE, Appellants pray that this Court direct the trial

court clerk by order to refile the original record and the

supplemental record with the requisite bookmarks in a text-

searchable format as required by the Texas Supreme Court.

Respectfully submitted,

/s/ Ernesto D. Sigmon

Ernesto D. Sigmon State Bar No. 24010397 LAW OFFICES OF ERNESTO D. SIGMON SIGMON LAW, PLLC 416 West Saulnier Street Houston, Texas 77019 214/395-1546 (Telephone) 713/485-6056 (Facsimile) esigmon@esigmon.com

ATTORNEY FOR APPELLANTS, GARRY L. ROLLINS AND CARLA D. ROLLINS

CERTIFICATE OF CONFERENCE

I certify that I conferred with lead appellate counsel for Texas

College and MPF Investments, LLC by e-mail on July 7th, 2015.

Greg Smith (counsel for Texas College) is unopposed to the motion.

Levon Hovnatanian (counsel for MPF) is unopposed to the motion.

/s/ Ernesto D. Sigmon

Ernesto D. Sigmon State Bar No. 24010397 LAW OFFICES OF ERNESTO D. SIGMON SIGMON LAW, PLLC 416 West Saulnier Street Houston, Texas 77019 214/395-1546 (Telephone) 713/485-6056 (Facsimile) esigmon@esigmon.com

ATTORNEY FOR APPELLANTS, GARRY L. ROLLINS AND CARLA D. ROLLINS

CERTIFICATE OF SERVICE I certify that on July 7, 2015, I served a copy of Appellants’

Unopposed Motion to Correct Clerk’s Record on the parties listed

below by electronic service and that the electronic transmission was

reported as complete. My e-mail address is esigmon@esigmon.com.

/s/ Ernesto D. Sigmon

Ernesto D. Sigmon State Bar No. 24010397 LAW OFFICES OF ERNESTO D. SIGMON WALKER SIGMON LAW 416 West Saulnier Street Houston, Texas 77019 214/395-1546 (Telephone) 713/485-6056 (Facsimile) esigmon@esigmon.com

ATTORNEY FOR APPELLANTS, GARRY L. ROLLINS AND CARLA D. ROLLINS

Greg Smith Texas Bar No. 18600600 Nolan D. Smith Texas Bar No. 24075632 RAMEY & FLOCK, P.C. 100 E. Ferguson, Suite 500 Tyler, Texas 75702 Telephone: 903-597-3301 Facsimile: 903-597-2413

Mr. Trey Yarbrough YARBROUGH WILCOX GUNTER, PLLC 100 East Ferguson, Suite 1015 Tyler, Texas 75702 Fax: 903.595.0191

Levon G. Hovnatanian Texas Bar No. 10059825 hovnatanian@mdjwlaw.com lonergan@mdjwlaw.com MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P. 808 Travis, 20th Floor Houston, Texas 77002 (713) 632-1700 – Telephone (713) 222-0101 – Facsimile

Todd M. Lonergan Texas Bar No. 12513700 lonergan@mdjwlaw.com 808 Travis, 20th Floor Houston, Texas 77002 (713) 632-1700 – Telephone (713) 222-0101 – Facsimile

Ryan K. Geddie Texas Bar No. 24055541 geddie@mdjwlaw.com MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P. Tollway Plaza One 16000 N. Dallas Parkway, Suite 800 Dallas, Texas 75248 (214) 420-5500 – Telephone (214) 420-5501 – Facsimile

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ACCEPTED 12-15-00121-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 7/7/2015 12:50:12 PM CATHY LUSK CLERK

No. 12-15-00121-CV

FILED IN IN THE COURT OF APPEALS 12th COURT OF APPEALS TYLER, TEXAS FOR THE TWELFTH DISTRICT OF TEXAS 7/7/2015 12:50:12 PM TYLER, TEXAS CATHY S. LUSK

Clerk

GARRY L. ROLLINS AND CARLA D. ROLLINS, Appellants

V.

TEXAS COLLEGE AND MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL,"

Appellees

Appeal from Cause No. 13-3353-A In the 7th District Court of Smith County, Texas

APPELLANTS’ UNOPPOSED MOTION TO CORRECT CLERK’S RECORD

TO THE HONORABLE COURT OF APPEALS:

Appellants, Gary L. Rollins and Carla Rollins request that this

Court issue a letter directing the trial court clerk to correct the

clerk’s record and to re-file the record in proper format and would

shows as follows:

Appellees are Texas College and MPF Investments, LLC d/b/a

“A-1 Rent All."

1. OMITTED ITEMS

Texas Rule of Appellate Procedure 34.5(c)(1) provides:

Tex. R. App. P. 34.5(c)(1). The parties have all previously made

letter requests per this rule to the trial court clerk to ensure the

record is complete.

2. DEFECTS IN THE RECORD

Texas Rule of Appellate Procedure 34.5 (d) provides:

(d) Defects or Inaccuracies. If the clerk's record is defective or inaccurate, the appellate clerk must inform the trial court clerk of the defect or inaccuracy and instruct the clerk to make the correction.

Tex. R. App. P. 34.5(d).

In preparing their brief, Appellants’ have determined that the

vast majority of the items included in the current clerk’s record are

not text-searchable, and not bookmarked at the first page. Because

of the way they the documents are formatted, an OCR attempt at

our end failed. This format is required by the Texas Supreme

Court’s Order Directing the form of the Appellate Record, Rule 1.2

that reads:

(a) file each computer file in text-searchable Portable Document Format (PDF);

(b) create electronic bookmarks to mark the first page of each document in the clerk's record; ….

Tex. R. App. P. Appendix C.

Below is an exemplar of how the bookmarks (on the left in

grey) are supposed to appear. This exemplar was taken from a

clerk training video provided on this Court’s website:

The exemplar clearly shows each document bookmarked with a

separate descriptive title.

Below is a view of the clerk’s record vol. 1 in this case:

By looking at the left, one can clearly see that the entire volume is

marked with only one book mark, when in fact, the volume contains

many separate documents. This is evidenced by the clerk’s own

index for volume 1 shown below:

Appellant requests this Court to order the trial court clerk to

bookmark the individual documents. Because each party is

required to furnish a bookmarked Appendix with its brief, this will

eliminate inconsistencies in the appendices of the parties, and

eliminate undue burden of document conversion on the part of the

Appellants.

Furthermore, although Appellant is unable to represent the

problem graphically, the documents contained in the record are not

text-searchable as required by the Supreme Court’s order.

Appellants request this Court to order the trial court clerk to file the record (to the extent feasible) in text-searchable format. Again, this

will reduce the burden on the Appellants and Appellees when

creating their appendices for this Court, which must be text-

searchable as well. This Courts website has a video which can be

of great use by the clerk in learning how to make the record comply

with the Supreme Court’s order:

http://www.txcourts.gov/12thcoa/practice-before-the-

court/electronic-filing/clerks-and-court-reporters.aspx

It is suggested that this Court direct the clerk to comply with the

video in preparing the record.

WHEREFORE, Appellants pray that this Court direct the trial

court clerk by order to refile the original record and the

supplemental record with the requisite bookmarks in a text-

searchable format as required by the Texas Supreme Court.

Respectfully submitted,

/s/ Ernesto D. Sigmon

ATTORNEY FOR APPELLANTS, GARRY L. ROLLINS AND CARLA D. ROLLINS

CERTIFICATE OF CONFERENCE

I certify that I conferred with lead appellate counsel for Texas

College and MPF Investments, LLC by e-mail on July 7th, 2015.

Greg Smith (counsel for Texas College) is unopposed to the motion.

Levon Hovnatanian (counsel for MPF) is unopposed to the motion.

/s/ Ernesto D. Sigmon

Ernesto D. Sigmon State Bar No. 24010397 LAW OFFICES OF ERNESTO D. SIGMON SIGMON LAW, PLLC 416 West Saulnier Street Houston, Texas 77019 214/395-1546 (Telephone) 713/485-6056 (Facsimile) esigmon@esigmon.com

ATTORNEY FOR APPELLANTS, GARRY L. ROLLINS AND CARLA D. ROLLINS

CERTIFICATE OF SERVICE I certify that on July 7, 2015, I served a copy of Appellants’

Unopposed Motion to Correct Clerk’s Record on the parties listed

below by electronic service and that the electronic transmission was

reported as complete. My e-mail address is esigmon@esigmon.com.

/s/ Ernesto D. Sigmon

Ernesto D. Sigmon State Bar No. 24010397 LAW OFFICES OF ERNESTO D. SIGMON WALKER SIGMON LAW 416 West Saulnier Street Houston, Texas 77019 214/395-1546 (Telephone) 713/485-6056 (Facsimile) esigmon@esigmon.com

ATTORNEY FOR APPELLANTS, GARRY L. ROLLINS AND CARLA D. ROLLINS

Greg Smith Texas Bar No. 18600600 Nolan D. Smith Texas Bar No. 24075632 RAMEY & FLOCK, P.C. 100 E. Ferguson, Suite 500 Tyler, Texas 75702 Telephone: 903-597-3301 Facsimile: 903-597-2413

Mr. Trey Yarbrough YARBROUGH WILCOX GUNTER, PLLC 100 East Ferguson, Suite 1015 Tyler, Texas 75702 Fax: 903.595.0191

Todd M. Lonergan Texas Bar No. 12513700 lonergan@mdjwlaw.com 808 Travis, 20th Floor Houston, Texas 77002 (713) 632-1700 – Telephone (713) 222-0101 – Facsimile

Garry L. Rollins and Carla D. Rollins v. Texas College and MPF Investments, LLC D/B/A "A-1 Rent All", (Tex. Ct. App. 2015).

Pincite

Garry L. Rollins and Carla D. Rollins v. Texas College and MPF Investments, LLC D/B/A "A-1 Rent All" (Garry L. Rollins and Carla D. Rollins v. Texas College and MPF Investments, LLC D/B/A "A-1 Rent All") — published by Counsel Stack Legal Research, free access to 12M+ legal documents.