Home/Court of Appeals of Texas/Joseph Andre Davis v. Sandra Lopez

Joseph Andre Davis v. Sandra Lopez

Court of Appeals of Texas·Decided August 21, 2015·No. 01-15-00353-CV·Published

Opinion

ACCEPTED 01-15-00353-CV & 01-15-00336-CV 01-15-00408-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 8/20/2015 8:16:09 8/21/2015 4:27:16 AM PM CHRISTOPHER PRINE CLERK

FIRST COURT OF APPEALS HOUSTON, TEXAS RE: Case No. 01-15-00353-CV FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS RE: Case No. 01-15-00356-CV 8/21/2015 8:16:09 AM

IN RE JOSEPH ANDRE DAVIS CHRISTOPHER A. PRINE Clerk

APPELLANT V. FLOYD D LOPEZ APPELLE From cause No. 2014-58410 In the 245th District Court of Harris County, Texas The Honorable Roy L. Moore

JUDICIAL NOTICE Under Federal Rule of Evidence 201

Appellants respectfully assert that the Court has overlooked or misapprehended critical facts. There is nor have there ever been an appeal filed against the appellate Sandra Lopez who has been deceased since May 24, 2014.

Case #1997-09681 is a case that was filed by Floyd D Lopez and Irma O Jimenez who are the maternal grandparents.

On June 28, 2014 under Texas Family Code 156. the maternal claiming to intervene in case #1997-09681 after the death of Sandra Lopez who was a joint managing conservator and deceased at the time the grandparents filed their petition in Sandra’s name. I have also submitted evidence that 245th district court no longer had jurisdiction as of May 30, 2015 in my writ of mandamus case # 01-15-00408-CV.

MAY 01, 2015 I filed an appeal which was a Wirt of Mandamus. I have paid the fee for both and presented all documents for both writs that are against the 245 th district court and the maternal grandparents and never against Sandra Lopez.

Moreover, "[m]andamus 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").

Perez argues mandamus review is inappropriate because CMH Homes failed to file a separate mandamus petition and, citing Jack B. 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 of Co-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 *453453 appellate court jurisdiction." (internal quotations and citations omitted)); see also Linwood v. 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."); Grand Prairie Indep. Sch. Dist. v. S. Parts Imps., 813 S.W.2d 499, 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").

On May 01, 2015 I filed a writ of mandamus under in the first court of appeals and I informed the First Court of Appeals of the 2 writs of mandamus that I had filed with this court. I was informed of 2 option that I had with the first court of appeals to dismiss my appeal the first option was to file a motion to dismiss or second option was that it will dismiss it self if payment was not received within 20 days.

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 Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997)); see alsoTEX. R.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 v. 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 Valero Energy 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., 274 S.W.3d 672, 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 day.8 Jack R. Anglin,842 S.W.2d at 272. 8. Although we note that CMH Homes's petition was not certified at this Court as required by Texas Rule of Appellate Procedure 52.3(j), we are confident that CMH Homes will fully comply with Rule 52 on remand to the court of appeals.

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").

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