Hari Prasad Kalakonda and Latha Kalakonda v. Aspri Investments, LLC

Opinion

ACCEPTED 04-15-00114-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 8/12/2015 9:43:15 AM KEITH HOTTLE CLERK

No. 04-15-00114-CV

FILED IN 4th COURT OF APPEALS In the Fourth Court of Appeals SAN ANTONIO, TEXAS San Antonio, Texas 08/12/15 9:43:15 AM KEITH E. HOTTLE Clerk HARI PRASAD KALAKONDA AND LATHA KALAKONDA, Appellants

v.

ASPRI INVESTMENTS, LLC, Appellee

From 45th Judicial District Court Bexar County, Texas, Cause No: 2014-CI-16394, the Honorable Judge Karen H. Pozza, presiding

APPELLEE ASPRI INVESTMENTS, LLC’S MOTION TO STRIKE PAGES FROM CLERK’S RECORD

Appellee Aspri Investments, LLC (“Aspri”) moves to strike pages 236

through 496 of the Clerk’s Record.

The trial court entered judgment confirming an arbitration award on

December 1, 2014. CR175-76. Appellants Mr. and Mrs. Kalakonda’s motion for

rehearing 1 was denied in a written order signed December 23, 2014. On December

1 No written motion for rehearing appears in the Clerk’s Record. A transcript of the hearing of December 23, 2014 is in the appellate record; the trail court declined to hear oral argument, informing the parties she would consider and rule on the written motion.

20140366.20140366/2199612.1 30 and 31, respectively, Appellants filed what are styled Motion to Modify and

Correct Judgment (CR224-30) and Motion for New Trial (CR231-33). There is no

indication in the record that the trial court conducted a hearing on either of the latter

two motions. No modified judgment issued; there is no written order overruling the

(12/31/14) Motion for New Trial. See Tex. R. Civ. P. 329b (b).

By letter dated March 24, 2015 2 Appellants sent and the District Clerk filed

what is described as their “additional attached record for communicating to the 4th

court of appeals.” CR236. The following 259 pages do not properly comprise part

of the record in this case. This bundle of 259 pages—more than half of the Clerk’s

Record—was not in the trial court’s file when judgment was signed or when any

timely post judgment motion was considered.

Appellants made no effort to have their “additional attached record” admitted

as evidence. Without need to determine whether any particular part of the material

does or does not appear elsewhere in the record, Aspri moves to strike pages 236

through 496 of the Clerk’s Record and all references thereto in any briefing in this

case.

2 Assuming the December 31 motion was a permitted amended motion for new trial (Tex. R. Civ. P. 329(b)), March 24 is more than 105 days after the December 1, 2014 judgment. Even if properly asked to do so, the trial court had no jurisdiction to consider any “new evidence” submitted at that late date. See Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000) (citing Philbrook v. Berry, 683 S.W.2d 378, 379 (Tex. 1985) (a timely filed motion extends the trial court’s jurisdiction over its judgment up to an additional seventy-five days, depending on when or whether the court acts on the motions)). 2 20140366.20140366/2199612.1 Aspri respectfully asks the Court to strike from the record all materials

comprising pages 236 through 496 of the Clerk’s Record and for all other relief to

which Aspri is entitled.

Respectfully submitted,

HIRSCH & WESTHEIMER, P.C.

By: /s/ Michael D. Conner Michael D. Conner State Bar No. 04688650 Email: mconner@hirschwest.com Eric Lipper State Bar No. 12399000 Email: elipper@hirschwest.com 1415 Louisiana, 36th Floor Houston, Texas 77002 Telephone: (713) 220-9162 Facsimile: (713) 223-9319

ATTORNEYS FOR APPELLEE ASPRI INVESTMENTS, LLC

3 20140366.20140366/2199612.1 CERTIFICATE OF COMPLIANCE

I do hereby certify that this document complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in a proportionally spaced typeface using Microsoft Word in 14 point Times New Roman.

/s/ Michael D. Conner Michael D. Conner

CERTIFICATE OF SERVICE

I hereby certify that on this 12th day of August, 2015, a true and correct copy of the forgoing was served as follows:

Hari Prasad Kalakonda Latha Kalakonda Shubha, LLC 5002 Newcastle Lane San Antonio, TX 78249 Via E-Serve: smfoodmart@yahoo.com,

4 20140366.20140366/2199612.1