ACCEPTED 14-15-00392-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 10/19/2015 2:51:00 PM CHRISTOPHER PRINE CLERK
No. 14-15-00392-CV
In the Court of Appeals FILED IN 1st COURT OF APPEALS For the Fourteenth Judicial District of Texas HOUSTON, TEXAS Houston, Texas 11/23/2015 5:50:17 PM CHRISTOPHER A. PRINE Clerk Jay H. Cohen, Appellant
v.
Tour Partners, Ltd., Appellee
On Appeal from Cause No. 2013-41051 In The 269th District Court of Harris County, Texas The Honorable Judge Hinde, Presiding
Tour Partners’ Motion to Dismiss for Want of Prosecution
Hawash Meade Gaston Neese & Cicack LLP Walter J. Cicack Texas Bar No. 04250535 Samuel B. Haren Texas Bar No. 24032854 2118 Smith Street Houston, Texas 77002 713-658-9001 (phone) 713-658-9011 (fax) wcicack@hmgnc.com sharen@hmgnc.com Attorneys for Appellee Tour Partners, Ltd.
Exhibit 1 Appellant Jay H. Cohen (“Cohen”) has received three extensions of his
briefing deadline. Despite these extensions, Cohen still has not filed his brief. As
demonstrated below, the Court should dismiss Cohen’s appeal for want of
prosecution.
Background
The initial clerk’s record was filed on June 10. Cohen’s opening brief was
initially due on July 10. Cohen has requested three extensions of his briefing
deadline:
First Extension: Two days before his initial deadline, Cohen sought a thirty-one day extension based on his attorney’s busy schedule. Appellee Tour Partners, Ltd. (“Tour Partners”) did not oppose this request. The Court granted the thirty-one day extension.
Second Extension: The day of the second deadline, Cohen sought a thirty- day extension based on his dissatisfaction with the contents of the Clerk’s Record. Tour Partners did not oppose this request. The Court granted the thirty-day extension.
Third Extension: The day of the third deadline, Cohen sought another extension based on his dissatisfaction with the Contents of the Clerk’s Record. Because Cohen’s own inattention to the file caused the lateness of the Clerk’s Record, Tour Partners opposed this request. The Court (1) granted a thirty-six day extension and (2) warned that “no further extensions will be granted absent exceptional circumstances . . . .” Order Granting Third Motion to Extend (emphasis in original).
Cohen’s final deadline to file his brief was Thursday, October 15. As of the
afternoon of Monday, October 19, Cohen still has not filed his brief. Discussion
“If an appellant fails to timely file a brief,” Texas Rule of Appellate Procedure
38.8(a)(1) allows the Court to “dismiss the appeal for want of prosecution, unless
the appellant reasonably explains the failure . . . .” Despite three extensions, Cohen
has failed to timely file a brief.
According to Cohen, this failure was caused by Cohen’s confusion over the
contents of his own record:
In reviewing the brief as drafted last week, I realized that it had been drafted assuming that no summary judgment evidence was excluded. The order granting in part some of your objections had not made it into the record. I immediately emailed Sam [Haren, attorney for Tour Partners,] and you to ask permission to include the order as a tab to the brief, which Sam indicated was not opposed.1 To not mislead the Court, I then attempted to re-draft the brief to ensure that there was no error as to the summary judgment evidence admitted, and I also had to address the exclusions. The re-write was too significant (as you can imagine) to complete in time. I have redrafted the brief and will be filing it tomorrow with a motion to extend time to the filing date. Unless you tell me otherwise, I will assume you are opposed to the extension.
Exhibit 1, Email from May to Cicack at 1 (emphasis added). That is, Cohen failed
to meet his fourth briefing deadline because he once again did not thoroughly
examine the Clerk’s Record until the evening his brief was due.2
1 The request referenced by Cohen was sent at 5:24 p.m. on the October 15 briefing deadline. See Exhibit 1, Email from May to Cicack at 2. Tour Partners’ counsel agreed to this request. Id. 2 In assessing this inattention, the Court should note that Cohen’s current appellate counsel also represented him at the time of the evidentiary ruling in question.
2 Prayer
Cohen has had three chances to file his brief on time. Tour Partners
respectfully submits that the Court should not indulge Cohen’s continued lack of
diligence by granting him a strike four. Tour Partners prays that the Court dismiss
Cohen’s appeal for want of prosecution and grant Tour Partners all other relief to
which it is entitled.
Respectfully submitted,
Hawash Meade Gaston Neese & Cicack LLP
/s/ Walter J. Cicack Walter J. Cicack Texas Bar No. 04250535 Samuel B. Haren Texas Bar No. 24032854 2118 Smith Street Houston, Texas 77002 713-658-9001 (phone) 713-658-9011 (fax) wcicack@hmgnc.com sharen@hmgnc.com
Attorneys for Appellee Tour Partners, Ltd.
3 Certificate of Conference
I hereby certify that I have conferred with opposing counsel concerning the
relief requested herein. Opposing counsel is opposed.
/s/ Samuel B. Haren Samuel B. Haren
Certificate of Service
I hereby certify that a true and correct copy of the foregoing was served on
the following via Electronic Service, on October 19, 2015:
George F. May Twomey | May, PLLC 2 Riverway, 15th Floor Houston, Texas 77056 george@twomeymay.com
Attorney for Appellant Jay H. Cohen
4 From: George May Sent: Monday, October 19, 2015 12:32 PM To: Walter Cicack; Sam Haren Subject: RE: Cohen v. Preston, Tour Partners
Walter,
I am preparing for a shareholders' meeting for a corporate client today.
In reviewing the brief as drafted last week, I realized that it had been drafted assuming that no summary judgment evidence was excluded. The order granting in part some of your objections had not made it into the record. I immediately emailed Sam and you to ask permission to include the order as a tab to the brief, which Sam indicated was not opposed. To not mislead the Court, I then attempted to re-draft the brief to ensure that there was no error as to the summary judgment evidence admitted, and I also had to address the exclusions. The re-write was too significant (as you can imagine) to complete in time. I have redrafted the brief and will be filing it tomorrow with a motion to extend time to the filing date. Unless you tell me otherwise, I will assume you are opposed to the extension.
Should you wish to file a motion to dismiss, which I of course would oppose, please note the above for the Court. I am tied up today but available in the morning tomorrow if you wish to talk.
George F. May, BS, JD Twomey | May, PLLC 2 Riverway, 15th Floor Houston, Texas 77056 (713) 659-0000 (832) 201-8485 – Facsimile george@twomeymay.com
NOTICE: This transmission may be: (1) subject to the Attorney-Client Privilege, (2) an attorney work product, or (3) strictly confidential. If you are not the intended recipient of this message, you may not disclose, print, copy or disseminate this information. If you have received this in error, please reply and notify the sender (only) and delete the message. Unauthorized interception of this e-mail is a violation of federal criminal law. This communication does not reflect an intention by the sender or the sender's client or principal to conduct a transaction or make any agreement by electronic means.
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ACCEPTED 14-15-00392-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 10/19/2015 2:51:00 PM CHRISTOPHER PRINE CLERK
No. 14-15-00392-CV
In the Court of Appeals FILED IN 1st COURT OF APPEALS For the Fourteenth Judicial District of Texas HOUSTON, TEXAS Houston, Texas 11/23/2015 5:50:17 PM CHRISTOPHER A. PRINE Clerk Jay H. Cohen, Appellant
v.
Tour Partners, Ltd., Appellee
On Appeal from Cause No. 2013-41051 In The 269th District Court of Harris County, Texas The Honorable Judge Hinde, Presiding
Tour Partners’ Motion to Dismiss for Want of Prosecution
Hawash Meade Gaston Neese & Cicack LLP Walter J. Cicack Texas Bar No. 04250535 Samuel B. Haren Texas Bar No. 24032854 2118 Smith Street Houston, Texas 77002 713-658-9001 (phone) 713-658-9011 (fax) wcicack@hmgnc.com sharen@hmgnc.com Attorneys for Appellee Tour Partners, Ltd.
Exhibit 1 Appellant Jay H. Cohen (“Cohen”) has received three extensions of his
briefing deadline. Despite these extensions, Cohen still has not filed his brief. As
demonstrated below, the Court should dismiss Cohen’s appeal for want of
prosecution.
Background
The initial clerk’s record was filed on June 10. Cohen’s opening brief was
initially due on July 10. Cohen has requested three extensions of his briefing
deadline:
First Extension: Two days before his initial deadline, Cohen sought a thirty-one day extension based on his attorney’s busy schedule. Appellee Tour Partners, Ltd. (“Tour Partners”) did not oppose this request. The Court granted the thirty-one day extension.
Second Extension: The day of the second deadline, Cohen sought a thirty- day extension based on his dissatisfaction with the contents of the Clerk’s Record. Tour Partners did not oppose this request. The Court granted the thirty-day extension.
Third Extension: The day of the third deadline, Cohen sought another extension based on his dissatisfaction with the Contents of the Clerk’s Record. Because Cohen’s own inattention to the file caused the lateness of the Clerk’s Record, Tour Partners opposed this request. The Court (1) granted a thirty-six day extension and (2) warned that “no further extensions will be granted absent exceptional circumstances . . . .” Order Granting Third Motion to Extend (emphasis in original).
Cohen’s final deadline to file his brief was Thursday, October 15. As of the
afternoon of Monday, October 19, Cohen still has not filed his brief. Discussion
“If an appellant fails to timely file a brief,” Texas Rule of Appellate Procedure
38.8(a)(1) allows the Court to “dismiss the appeal for want of prosecution, unless
the appellant reasonably explains the failure . . . .” Despite three extensions, Cohen
has failed to timely file a brief.
According to Cohen, this failure was caused by Cohen’s confusion over the
contents of his own record:
In reviewing the brief as drafted last week, I realized that it had been drafted assuming that no summary judgment evidence was excluded. The order granting in part some of your objections had not made it into the record. I immediately emailed Sam [Haren, attorney for Tour Partners,] and you to ask permission to include the order as a tab to the brief, which Sam indicated was not opposed.1 To not mislead the Court, I then attempted to re-draft the brief to ensure that there was no error as to the summary judgment evidence admitted, and I also had to address the exclusions. The re-write was too significant (as you can imagine) to complete in time. I have redrafted the brief and will be filing it tomorrow with a motion to extend time to the filing date. Unless you tell me otherwise, I will assume you are opposed to the extension.
Exhibit 1, Email from May to Cicack at 1 (emphasis added). That is, Cohen failed
to meet his fourth briefing deadline because he once again did not thoroughly
examine the Clerk’s Record until the evening his brief was due.2
1 The request referenced by Cohen was sent at 5:24 p.m. on the October 15 briefing deadline. See Exhibit 1, Email from May to Cicack at 2. Tour Partners’ counsel agreed to this request. Id. 2 In assessing this inattention, the Court should note that Cohen’s current appellate counsel also represented him at the time of the evidentiary ruling in question.
2 Prayer
Cohen has had three chances to file his brief on time. Tour Partners
respectfully submits that the Court should not indulge Cohen’s continued lack of
diligence by granting him a strike four. Tour Partners prays that the Court dismiss
Cohen’s appeal for want of prosecution and grant Tour Partners all other relief to
which it is entitled.
Respectfully submitted,
Hawash Meade Gaston Neese & Cicack LLP
/s/ Walter J. Cicack Walter J. Cicack Texas Bar No. 04250535 Samuel B. Haren Texas Bar No. 24032854 2118 Smith Street Houston, Texas 77002 713-658-9001 (phone) 713-658-9011 (fax) wcicack@hmgnc.com sharen@hmgnc.com
Attorneys for Appellee Tour Partners, Ltd.
3 Certificate of Conference
I hereby certify that I have conferred with opposing counsel concerning the
relief requested herein. Opposing counsel is opposed.
/s/ Samuel B. Haren Samuel B. Haren
Certificate of Service
I hereby certify that a true and correct copy of the foregoing was served on
the following via Electronic Service, on October 19, 2015:
George F. May Twomey | May, PLLC 2 Riverway, 15th Floor Houston, Texas 77056 george@twomeymay.com
Attorney for Appellant Jay H. Cohen
4 From: George May Sent: Monday, October 19, 2015 12:32 PM To: Walter Cicack; Sam Haren Subject: RE: Cohen v. Preston, Tour Partners
Walter,
I am preparing for a shareholders' meeting for a corporate client today.
In reviewing the brief as drafted last week, I realized that it had been drafted assuming that no summary judgment evidence was excluded. The order granting in part some of your objections had not made it into the record. I immediately emailed Sam and you to ask permission to include the order as a tab to the brief, which Sam indicated was not opposed. To not mislead the Court, I then attempted to re-draft the brief to ensure that there was no error as to the summary judgment evidence admitted, and I also had to address the exclusions. The re-write was too significant (as you can imagine) to complete in time. I have redrafted the brief and will be filing it tomorrow with a motion to extend time to the filing date. Unless you tell me otherwise, I will assume you are opposed to the extension.
Should you wish to file a motion to dismiss, which I of course would oppose, please note the above for the Court. I am tied up today but available in the morning tomorrow if you wish to talk.
George F. May, BS, JD Twomey | May, PLLC 2 Riverway, 15th Floor Houston, Texas 77056 (713) 659-0000 (832) 201-8485 – Facsimile george@twomeymay.com
NOTICE: This transmission may be: (1) subject to the Attorney-Client Privilege, (2) an attorney work product, or (3) strictly confidential. If you are not the intended recipient of this message, you may not disclose, print, copy or disseminate this information. If you have received this in error, please reply and notify the sender (only) and delete the message. Unauthorized interception of this e-mail is a violation of federal criminal law. This communication does not reflect an intention by the sender or the sender's client or principal to conduct a transaction or make any agreement by electronic means. Nothing contained in this message or in any attachment shall satisfy the requirements for a writing, and nothing contained herein shall constitute a contract or electronic signature under the Electronic Signatures in Global and National Commerce Act, any version of the Uniform Electronic Transactions Act or any other statute governing electronic transactions.
-----Original Message----- From: Walter Cicack [mailto:wcicack@hmgnc.com] Sent: Monday, October 19, 2015 11:59 AM To: George May; Sam Haren Subject: RE: Cohen v. Preston, Tour Partners
George, I just left you a message. I just want to make sure we did not miss something. If you filed something in the appeal of the Cohen case I did not get it. Assuming you did not file something, we will file a motion to dismiss and I wanted to see if you opposed. Please get back to me. Thanks
Walter Cicack (713) 658-9003 (direct)
-----Original Message----- From: Walter Cicack Sent: Friday, October 16, 2015 4:35 PM To: 'George May' ; Sam Haren 1
Exhibit 1 Subject: RE: Cohen v. Preston, Tour Partners
George, did you file something? We did not receive anything.
-----Original Message----- From: George May [mailto:george@twomeymay.com] Sent: Thursday, October 15, 2015 5:24 PM To: Sam Haren ; Walter Cicack Subject: Cohen v. Preston, Tour Partners
Sam and/or Walter,
Judge Hinde's order on your summary judgment objections did not make it into the record somehow. May I include a copy as a tab with the appendix?
George May Twomey May, PLLC Two Riverway, 15th Floor Houston, Texas 77056 (713) 659-0000 (281) 201-8485 - fax george@twomeymay.com
2 Motion Granted; Appeal Dismissed and Memorandum Opinion filed November 10, 2015.
In The
Fourteenth Court of Appeals
JAY COHEN, Appellant V.
TOURS PARTNERS, LTD. AND PRESTON REALTY CORPORATION, Appellee
On Appeal from the 269th District Court Harris County, Texas Trial Court Cause No. 2013-41051
MEMORANDUM OPINION
This is an appeal from a judgment signed January 28, 2015. The clerk’s record was filed June 10, 2015. No reporter’s record was taken. Appellant’s brief was due October 15, 2015. No brief was filed.
On October 29, 2015, appellee filed a motion to dismiss for want of prosecution. See Tex. App. P. 42.3(b). Appellant filed no response. Accordingly,
Exhibit 2 appellee’s motion is granted and the appeal is ordered dismissed.
PER CURIAM
Panel consists of Justices Boyce, Busby, and Brown.
2 Sam Haren From: Walter Cicack Sent: Monday, November 16, 2015 7:28 PM To: Sam Haren; George May Subject: RE: Status of Appeal
George, would you at least give us the professional courtesy of a response? Thank you.
Walter Cicack (713) 658‐9003 (direct)
From: Sam Haren Sent: Monday, November 16, 2015 11:02 AM To: Walter Cicack ; George May Subject: RE: Status of Appeal
George,
After the expiration of last Friday’s deadline, Walter asked me to touch base with you regarding your appeal. Do you still intend to go forward with Cohen’s remaining case?
Thanks,
Sam
From: Walter Cicack Sent: Tuesday, November 10, 2015 10:24 AM To: George May Cc: Sam Haren Subject: Status of Appeal
George, it appears that you decided not to file a brief in the appeal of Judge’s Hinde’s judgment despite the fact that you said you were going to do so and instructed me to inform the court of appeals that you were going to do so. I will not even ask you what you intend to do in the other appeal since I cannot rely on your answer. But I do have a simple question‐‐ do you oppose our motion asking for leave to allow us to file our brief after you file your brief? As you know, if Cohen does not pursue the appeal, our appeal point is moot and briefing would not be required. Please let me know your position on this by 3 pm tomorrow. If you have any questions, please let me know. Thank you for your consideration.
Walter J. Cicack Partner
2118 Smith Street | Houston, TX 77002 tel (713) 658-9003 | mobile (713) 299-2127 fax (713) 658-9011
website | vCard | map | email
This email may be a privileged communication. If you are not the intended recipient, please delete it.
Exhibit 3
2 Sam Haren From: Walter Cicack Sent: Tuesday, November 10, 2015 10:24 AM To: George May Cc: Sam Haren Subject: Status of Appeal
George, it appears that you decided not to file a brief in the appeal of Judge’s Hinde’s judgment despite the fact that you said you were going to do so and instructed me to inform the court of appeals that you were going to do so. I will not even ask you what you intend to do in the other appeal since I cannot rely on your answer. But I do have a simple question‐‐ do you oppose our motion asking for leave to allow us to file our brief after you file your brief? As you know, if Cohen does not pursue the appeal, our appeal point is moot and briefing would not be required. Please let me know your position on this by 3 pm tomorrow. If you have any questions, please let me know. Thank you for your consideration.
2118 Smith Street | Houston, TX 77002 tel (713) 658-9003 | mobile (713) 299-2127 fax (713) 658-9011
This email may be a privileged communication. If you are not the intended recipient, please delete it.
1 CertifiedDocumentNumber:63124687-Page1of5
Exhibit 4 7A Pgs-5 CertifiedDocumentNumber:63124687-Page2of5 CertifiedDocumentNumber:63124687-Page3of5 CertifiedDocumentNumber:63124687-Page4of5 CertifiedDocumentNumber:63124687-Page5of5 I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this March 30, 2015
Certified Document Number: 63124687 Total Pages: 5
Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS
In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com Un of fic ial Co py O ffic e of C hr is
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