Mary Lynn Kantara Gerke v. Jamil James Kantara

Opinion

ACCEPTED 01-14-00082-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 1/23/2015 11:55:42 AM CHRISTOPHER PRINE CLERK

No. 01-14-00082-CV __________________________________________________________ FILED IN 1st COURT OF APPEALS IN THE COURT OF APPEALS HOUSTON, TEXAS 1/23/2015 11:55:42 AM CHRISTOPHER A. PRINE FOR THE FIRST DISTRICT OF TEXAS Clerk

AT HOUSTON __________________________________________________________

MARY LYNN KANTARA GERKE

V.

JAMIL “JAMES” KANTARA

APPELLEE’S RESPONSE TO APPELLANT’S RESPONSE TO APPELLEE’S MOTION TO STRIKE BRIEF OF APPELLANT __________________________________________________________________

TO THE HONORABLE COURT OF APPEALS:

Appellee, Jamil “James” Kantara (“James”), files this Appellee’s Response

to Appellant’s Response to Appellee’s Motion to Strike Brief of Appellant.

1. Appellant, in paragraph 4 of her Response to Appellee’s Motion to

Strike Brief of Appellant, states the original Appellant’s Brief filed pro se on

December 9, 2014 by Appellant was labeled as “received” and not “filed” on this

Court’s website. 2. Appellant fails to point this Court to the first page of Appellant’s Brief

where it is clearly file stamped “Filed in the 1st Court of Appeals, Houston, Texas,

December 9, 2014, Christopher Prine, Clerk.”

3. Additionally, in paragraph 2 of her Response, Counsel for Appellant

knew Appellant filed her Appellant’s Brief pro se.

4. Neither Appellant nor Appellant’s counsel attempted to withdraw

Appellant’s Brief prior to the date Appellee’s Brief was due.

5. Appellant further argues, “this Court never generated notice to

counsel that Appellant’s Brief had been filed or that Appellee’s Brief was due.”

6. While it is greatly appreciated by all who come before this Court, this

Court’s diligence in notifying all parties when briefs are due is not required by the

Rules. Failure by this Court to notify a party when a brief is due does not extend

the appellate timelines. TRAP 9.5(a) requires the filing party to serve notice of all

filings on all parties. Appellant timely notified Appellee she filed her brief.

7. Appellee filed his Response to Appellant’s Brief within the timeline

set forth in TRAP 38.6(b).

8. It would offend traditional notions of fair play and substantial justice

to: (i) allow Appellant to file an Appellant brief pro se never withdrawing same,

(ii) knowingly allow the appellee timeline to run, (iii) require Appellee to file a

reply brief, (iv) allow counsel for Appellant to claim Appellant did not have

-2- authority to file an Appellant brief, and (v) allow Appellant to file a second

Appellant brief.

9. Therefore, Appellee respectfully requests this Court grant Appellee’s

Motion to Strike Brief of Appellant.

Respectfully submitted, Wilfried P. Schmitz & Associates, P.C.

Digitally signed by Wilfried Schmitz

Wilfried Schmitz DN: cn=Wilfried Schmitz, o=Wilfried P. Schmitz P.C., ou, email=wilfried@schmitzlaw.com, c=US BY: _________________________ Date: 2015.01.23 11:24:50 -06'00'

Wilfried P. Schmitz Texas Bar No. 17778700 17040 El Camino Real, Suite 400 Houston, Texas 77058 Phone: (281) 486-5066 Email: Court_Documents@schmitzlaw.com Attorney for Jamil “James” Kantara

-3- CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing Appellee’s Response to Appellant’s Response to Appellee’s Motion to Strike Brief of Appellant has this 23rd day of January, 2015, been sent pursuant to T.R.A.P. 9.5 (b)(1) by electronic mail, to the following:

Ashley Tomlinson 1800 Saint James Place, Suite 620 Houston, TX 77056 eserviceavt@dalefamilylaw.com

Douglas York 3355 W. Alabama, Suite 100 Houston, Texas 77098 york@douglasyork.com

Wilfried Schmitz DN: cn=Wilfried Schmitz, o=Wilfried P. Schmitz P.C., ou, email=wilfried@schmitzlaw.com, c=US Date: 2015.01.23 11:33:16 -06'00'

Wilfried P. Schmitz

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