ACCEPTED 01-14-00215-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 1/26/2015 4:03:13 PM CHRISTOPHER PRINE CLERK
NO. 01-14-00215-CV
FILED IN IN fiIE 1st COURT OF APPEALS HOUSTON, TEXAS COURT OF APPEALS 1/26/2015 4:03:13 PM FOR THE FIRST DISTRICT CHRISTOPHER A. PRINE OF THE STATE OF TEXAS Clerk AT HOUSTON
LETIIA PILI,AI Appellanf
vs.
JESUS VEGA AND DALIA VEGA Appellees,
On Appeal from the 234th Civil District C-ourt of Harris C-ountv. Texas-cause tr2011-68692
REQUEST BY APPELI"A}TT TO KEEP CASE PENDING AT THIS TIME AS DISMISSAL COULD RESULT IN APPELLEES ATTEMPTING TO COLLECT FTILL JUDGMENT
NEII ELEMENT IN TIIIS APPEAL I. A. c. K. Pillai. is the father of Appellant ( and the real gartg in lnterest, including the person whose ftmds are referred to as Appel-Iant's futtds, but are actuallV the ftmds of said G. K. Pi7Lai) . B. c. K. PiIIai was shot in the stomach, a few days ago, while he !,ras in his C.P.A. office in Denver Harbor, by it is understood a man about 18 to 20 years ol-d, apparently on and seeking money for drugs. It is understood that the perpetrator of the crlne stole something like $20.00 and then shot e. K. PillaL and fled. G. K. Pil.lai was in the hospital as the bullet lt is understood went through his pancreas. He is out now, but has not been able to get in to talk with Appellantrs attorney, except briefly on the phone, while he was in the hospital to just gLve the fact he had been shot and bare details stated above. C. Therefore, it is requested that the First Court of Appeals NOT DISMISS THIS CASE ON MONDAY, JANUARY 26, 2OLS AS NOlv SCHEDULED. There is more to this motion, set out bel-ow, but this fact it is believed, needed to be stated first, to show that dismissal- with more detail just is not possible at this time.
BRIEF BACKGROT'ND II, A. This case was settled at MedLation on June LI, 2O!4. After sorne discussions between counsel on both sides, Appelleers attorney, on Jufy 7, 2OL4, had spent considerable time preparing five documents needed to folfow through with the compl-etion of this case. These documents prepared by Appellantrs attorney and finally agreed to by Appellees' attorney on or about July 28, 20L4. Those documents vrhich Appellees were to sign, and their attorney receive a $24,000.00 settlement cashier's check to conclude the Mediation Settfement Agreement, by exchanging the said check for the signed, notarized documents to be given to Appellantrs attorney. The Document r^rere absolutely necessary to conclude this matter, as they were: 1. Notice of Settlenent at Mediation. WhLch was to be jointly signed and sent to the 1st Court of Appeal-s within one or two days. 2. Settlement Agreement ( this Ls the short title. This docrnnent is to fiTe with the First Court of Appeals- Eouston). This was basically the full- version of the mediation settlement memorandun signed at Mediatlon. It is understood that Appel-l-ees' attorney agrees on this document and it is not one that was in issue for changes. Appellantts attorney has been tol-d it is okay. 3. Ouit CLain Deed. This docunent has been redone several times and i.t is understood that the last version is now okay with ApSrellees I attorney and Appellees have signed or are signing this last version, 4. Release of Judqment Lien. This document has been redone several times and it is understood that the last version is now okay with Appellees I attorney and Appellees have signed or are signing this last version. 5. Joint Aqreed Post-Judoment ltotion To Release Supersedeas Bond Funds In Reoistrv Of The Court. 6. Joint Aoreed Order To Release Supersedeas Bond Furtds In Registry of The Court.
B. Appellees apparently had some conflict in their relationship. Upon Appellant I s attorney challenge made at Medj-ation, that al-l necessary parties were not present, Appellees
5 attorney announced at Mediation, that Jesus vega had the authority of his !'ri fe to settle the case. Appellant secured a cashier's check for $24,000.00 (which is sti77 in AppTTant's attorneg's safe awaiting deliverg of tbe signed, notarized documents ) and has been there awaiting completion for months now. Apparentl"y tbe represerrtation made by AppelJ-ees I attorney that once the documents vrere delivered to him for his clients to sign, and the check ready to be del-ivered, he would have the Appellees sign the documents and the documents and check could then be exchanged. C. Instead, Appellant has had to file with this Court a Motion to Compel i then an updated Motion to Compel and for Sanctionsi and then as Request for an Emergency Hearing. D. Appellees I attorney has ceased responding to anything whlch Appellantrs attorney sends to him and those documents filed. Now this Court has given notice that the thing which needs to be done, if for Appellant to file a rBreach of Contractr action to enforce the nediation Agreement. The Court also stated it would be dismissing this appeal .
PROBLEM WITH DISMISSAL III. A. The problem that Appellantrs attorney sees in a di.smissal" are these: 1, Appellant is stifl out the Supersedeas Bond amount of $32,594.97 pfus accrued interest, which ls to be paid to Appellantt 2- Appell"ant also has put out $24,00O.OO, the settlement amount, which is being held by Appelleesl attorney in his safe, to deliver ln return for the slgned documentsi 3. Appellant has had to expend thousands of doll-ars already, in attorneyrs fees and expenses in trying to enforce the Mediation Settlement Agreement, and there is not even any response no$r from Appellees t attorney. 4. If this appeal is di.smissed, then this is what could happen: a. Appelleesr attorney, using the dismissal of this appeal by the First Court of Appeals, couLd attempt then to obtain the S32,594.97 plus accrued interest, supersedeas bond, showing that the Appeal is not longer pending and hence they are entj-t1ed to the amount of the origi.nal j udgnent t and,/or b. Even if Appellant files the suit as suggested by this Court is the proper procedure, before service could be obtained upon the Appellees and thej.r attorney and law firm, to obtain a possible inj unction against such action, a. Just above could occur. Once those funds were given to the Appellees, any action for breach of contract, could be a hollow judgment, as the funds would already have been spent, glven asray or gonei and/or c. It may be that Appellant cannot even get cooperation from Appellees I attorney to provide the service address of each of the Appellees, and it might take months and a large expense to try to locate and get them served, and then a 1ot of expense to get to a judgment for Appellant, which may be just the same thing as an order to comply with the Mediation Settlenent.
MINIMUM RELIEF SOUGHT rv. A. Appellant therefore requests that this Court not dismiss this case on January 26, 2OL5 as the present OTder states will be done, unless this motlon is fil-ed to be considered by this Courti and B. this appeal be kept on the docket of this Court, until- Appellant can file a suit in llarris County District Court, gain service upon the Appellees, and an injunction from that District Court upon the Appellees and the Harris County District Clerk not to disburse the funds in the Registry of this Court, wlthout an Agreement signed by Appellees or an Order of the District Court Judge in the new case; and C. If this Court could determine it has a 1egal basis to act upon the motions for sanctions previously filed in this court (it is believed nelther motion nor the reguest for an emergencg hearing is contested), and order reasonable attorneyrs fees and expenses, as requested, as an incentive to the Appellees to try to resolve thls matter without the expense of another entire ]aw suit; and/or, in the alternative, D.
Free access — add to your briefcase to read the full text and ask questions with AI
ACCEPTED 01-14-00215-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 1/26/2015 4:03:13 PM CHRISTOPHER PRINE CLERK
NO. 01-14-00215-CV
FILED IN IN fiIE 1st COURT OF APPEALS HOUSTON, TEXAS COURT OF APPEALS 1/26/2015 4:03:13 PM FOR THE FIRST DISTRICT CHRISTOPHER A. PRINE OF THE STATE OF TEXAS Clerk AT HOUSTON
LETIIA PILI,AI Appellanf
vs.
JESUS VEGA AND DALIA VEGA Appellees,
On Appeal from the 234th Civil District C-ourt of Harris C-ountv. Texas-cause tr2011-68692
REQUEST BY APPELI"A}TT TO KEEP CASE PENDING AT THIS TIME AS DISMISSAL COULD RESULT IN APPELLEES ATTEMPTING TO COLLECT FTILL JUDGMENT
NEII ELEMENT IN TIIIS APPEAL I. A. c. K. Pillai. is the father of Appellant ( and the real gartg in lnterest, including the person whose ftmds are referred to as Appel-Iant's futtds, but are actuallV the ftmds of said G. K. Pi7Lai) . B. c. K. PiIIai was shot in the stomach, a few days ago, while he !,ras in his C.P.A. office in Denver Harbor, by it is understood a man about 18 to 20 years ol-d, apparently on and seeking money for drugs. It is understood that the perpetrator of the crlne stole something like $20.00 and then shot e. K. PillaL and fled. G. K. Pil.lai was in the hospital as the bullet lt is understood went through his pancreas. He is out now, but has not been able to get in to talk with Appellantrs attorney, except briefly on the phone, while he was in the hospital to just gLve the fact he had been shot and bare details stated above. C. Therefore, it is requested that the First Court of Appeals NOT DISMISS THIS CASE ON MONDAY, JANUARY 26, 2OLS AS NOlv SCHEDULED. There is more to this motion, set out bel-ow, but this fact it is believed, needed to be stated first, to show that dismissal- with more detail just is not possible at this time.
BRIEF BACKGROT'ND II, A. This case was settled at MedLation on June LI, 2O!4. After sorne discussions between counsel on both sides, Appelleers attorney, on Jufy 7, 2OL4, had spent considerable time preparing five documents needed to folfow through with the compl-etion of this case. These documents prepared by Appellantrs attorney and finally agreed to by Appellees' attorney on or about July 28, 20L4. Those documents vrhich Appellees were to sign, and their attorney receive a $24,000.00 settlement cashier's check to conclude the Mediation Settfement Agreement, by exchanging the said check for the signed, notarized documents to be given to Appellantrs attorney. The Document r^rere absolutely necessary to conclude this matter, as they were: 1. Notice of Settlenent at Mediation. WhLch was to be jointly signed and sent to the 1st Court of Appeal-s within one or two days. 2. Settlement Agreement ( this Ls the short title. This docrnnent is to fiTe with the First Court of Appeals- Eouston). This was basically the full- version of the mediation settlement memorandun signed at Mediatlon. It is understood that Appel-l-ees' attorney agrees on this document and it is not one that was in issue for changes. Appellantts attorney has been tol-d it is okay. 3. Ouit CLain Deed. This docunent has been redone several times and i.t is understood that the last version is now okay with ApSrellees I attorney and Appellees have signed or are signing this last version, 4. Release of Judqment Lien. This document has been redone several times and it is understood that the last version is now okay with Appellees I attorney and Appellees have signed or are signing this last version. 5. Joint Aqreed Post-Judoment ltotion To Release Supersedeas Bond Funds In Reoistrv Of The Court. 6. Joint Aoreed Order To Release Supersedeas Bond Furtds In Registry of The Court.
B. Appellees apparently had some conflict in their relationship. Upon Appellant I s attorney challenge made at Medj-ation, that al-l necessary parties were not present, Appellees
5 attorney announced at Mediation, that Jesus vega had the authority of his !'ri fe to settle the case. Appellant secured a cashier's check for $24,000.00 (which is sti77 in AppTTant's attorneg's safe awaiting deliverg of tbe signed, notarized documents ) and has been there awaiting completion for months now. Apparentl"y tbe represerrtation made by AppelJ-ees I attorney that once the documents vrere delivered to him for his clients to sign, and the check ready to be del-ivered, he would have the Appellees sign the documents and the documents and check could then be exchanged. C. Instead, Appellant has had to file with this Court a Motion to Compel i then an updated Motion to Compel and for Sanctionsi and then as Request for an Emergency Hearing. D. Appellees I attorney has ceased responding to anything whlch Appellantrs attorney sends to him and those documents filed. Now this Court has given notice that the thing which needs to be done, if for Appellant to file a rBreach of Contractr action to enforce the nediation Agreement. The Court also stated it would be dismissing this appeal .
PROBLEM WITH DISMISSAL III. A. The problem that Appellantrs attorney sees in a di.smissal" are these: 1, Appellant is stifl out the Supersedeas Bond amount of $32,594.97 pfus accrued interest, which ls to be paid to Appellantt 2- Appell"ant also has put out $24,00O.OO, the settlement amount, which is being held by Appelleesl attorney in his safe, to deliver ln return for the slgned documentsi 3. Appellant has had to expend thousands of doll-ars already, in attorneyrs fees and expenses in trying to enforce the Mediation Settlement Agreement, and there is not even any response no$r from Appellees t attorney. 4. If this appeal is di.smissed, then this is what could happen: a. Appelleesr attorney, using the dismissal of this appeal by the First Court of Appeals, couLd attempt then to obtain the S32,594.97 plus accrued interest, supersedeas bond, showing that the Appeal is not longer pending and hence they are entj-t1ed to the amount of the origi.nal j udgnent t and,/or b. Even if Appellant files the suit as suggested by this Court is the proper procedure, before service could be obtained upon the Appellees and thej.r attorney and law firm, to obtain a possible inj unction against such action, a. Just above could occur. Once those funds were given to the Appellees, any action for breach of contract, could be a hollow judgment, as the funds would already have been spent, glven asray or gonei and/or c. It may be that Appellant cannot even get cooperation from Appellees I attorney to provide the service address of each of the Appellees, and it might take months and a large expense to try to locate and get them served, and then a 1ot of expense to get to a judgment for Appellant, which may be just the same thing as an order to comply with the Mediation Settlenent.
MINIMUM RELIEF SOUGHT rv. A. Appellant therefore requests that this Court not dismiss this case on January 26, 2OL5 as the present OTder states will be done, unless this motlon is fil-ed to be considered by this Courti and B. this appeal be kept on the docket of this Court, until- Appellant can file a suit in llarris County District Court, gain service upon the Appellees, and an injunction from that District Court upon the Appellees and the Harris County District Clerk not to disburse the funds in the Registry of this Court, wlthout an Agreement signed by Appellees or an Order of the District Court Judge in the new case; and C. If this Court could determine it has a 1egal basis to act upon the motions for sanctions previously filed in this court (it is believed nelther motion nor the reguest for an emergencg hearing is contested), and order reasonable attorneyrs fees and expenses, as requested, as an incentive to the Appellees to try to resolve thls matter without the expense of another entire ]aw suit; and/or, in the alternative, D. Because of such breach by Appellees and their attorney, because of the fact that the Appellees' jointly requested that they be able to go to nediation to settle this casei signed the Mediation Settlement Agreement, thereby agreeing to the settlement t but then ignored the settlement alternative provided by tftis Court, settled the case, but then rirould not honor the settlement made under the ausplces of this Courti and hence their Answer to Appeal- shoul-d be dismissed and this Court reverse and render in favor of the AppeJ.lant, by the default of the Appellees in this Court. E. It should be noted by Appellant and AppellantIs attorney, that a sizeable amount of the Medlatton Settlement Agreement amount, 1s offset by the considerable amount of tlme and work and expense by Appellantrs attorney, in attempting to gain conpletion of the mediation settlement agreement, attempt to enforce it through motions and a request for emergency hearing in this Court, and in trying to prevent this Appeal from being dismissed, and possibly allowing Appellees to grab the origlnal J udgment amount in the Registry of the trial court, by the dismissal of the Appeal in this Court. F- It is beli-eved that thj.s Court has the ability to enforce actions it has taken and have been ignored by one party and therefore can be sanctioned by the First Court of Appeal-s.
V|HEREFORE, PREMISES CONSIDERED, Appellant ( aJld her father, the rea] partg in intetest and person who has paid the over 556,000.00 now being held bg the Registrg of the Harrj-s Countg District CTerk and AppeTTant's attorneg, in the forfr of the Supersedeas Bond and interest AND the cashier,s check in AplreIlanX's attotneg's safe) requests that this Appeal be kept on the active docket of this Court, until notLce is given that a suit to enforce has been filed; the Appellees and their attorney ( and/or law f itn ) served with citation; an injunction granted by the Judge of the Court in the new case uporl Appellees and upon the Harris County District Clerk from distrlbuting the funds in the Registry without proper agreement of the parties and attorneys or order of the Judge in the new casei and therefore, the ability the Appellees and/or their attorney or faw firm, from being able to obtain the funds in the Harris County District C1erk's Regj.stry, being secured pending such agreement or Court Orderi and for such other and further relief, at law or in equity, to which Appellant is justJ.y entitled. RespectfulIy submitted, T. W. PROCTOR
T. W. Proctor, J.D.---Attorney for AppelLant Glendale Mediation Center 630 Uvalde Houston, TX 77Ot5-3766 (7L3) 453-8338 rBA #16350000 FAx (713) 453-3232 email : auraman(aswbell.net CERTIFICATE OF SEFVICE On January 23, 2OI5, I, T. W. proctor, J.D., attorney for Appellant, hereby certify that I have delivered a true and correct copy of the above instrument( s ) to each attorney of record or pro se party herein, at the address(es) shown below: by filing same through ProDoc with a copy designated to be sent to such attorney or partyi or by placing same in a U.S. post-paid certified mail wrapper, addressed as shown below, and deposited with the U. S. Postal Servicei or by sendl-ng by FAx: DANIEL F. CASTANEDA, J.D., Buckley, White, Castaneda & Howell, L.L.P., 240J- Fountainview, Suite L0O0, Houston, Texas 77057 a 7L3 749-77OO FAx 7L3 789-7703 TBA #O398O54O Email: dcastaneda@bwchlaw. com ( attotneg for Jesus and Dalia Vega)
T. W. Proctor, J.D.--Attorney for Appellant