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

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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

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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

Digitally signed by Wilfried Schmitz

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