No. 04

- 15

- 00114 -CV

In the Fourth Court of Appeals

San An to nio , Texas

HARI PRASAD KALAKONDA AND LATHA KALAKONDA , Appellants

v.

ASPRI INVESTMENTS, LLC, Appellee

F rom 45th Judicial District Court Bexar County, Texas, Cause No: 2014 -CI- 16394,

the Honorable Judge Karen H. Pozza, presiding

APPELLEE ASPRI INVESTMENTS, LLC ’ S MOTION TO STRIKE PAGES FROM CLERK’S RECORD

Appellee Aspri Investments, LLC (“Aspri”) moves to strike pages 23 6

through 496 of the Clerk’s Record.

T he trial court entered judgment confirming an arbitration award on

December 1, 2014. CR175

- 76. Appellants Mr. and Mrs. Kalakonda’s motion for

rehearing 1 was denied in a written order signed December 23, 2014. On December

1 No written motion for rehearing appears in the Clerk’s Record. A transcript of the hearing of December 23, 2014 is in the appellate record; the trail court declined to hear oral argument, informing the parties she would consider and rule on the written motion.

20140366.20140366/2199612.1 ACCEPTED
04-15-00114-CV
FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS
8/12/2015 9:43:15 AM
KEITH HOTTLE
CLERK2

20140366.20140366/2199612.1 30 and 31, respectively, Appellants filed what are styled Motion to Modify and

Correct Judgment (CR224

- 30) and Motion for New Trial (CR231

- 33). There is no

indication in the record that the trial court conducted a hearing on either of the latter

two motions

. No modified judgment issued; the re is no written order overruling the

(12/31/14) M otion for N ew T rial

. See Tex. R. Civ. P. 329b (b).

By letter dated March 24 , 2015 2 Appellants sent and the District Clerk filed

what is described as their “additional attached record for communicating to the 4 th

court of appeals.” CR236. The following 259 pages do not properly comprise part

of the record in this case. T his bundle of 259 pages

— more than half of the Clerk’s

Record

— was not in the trial court’s file when judgment w as signed or when any

timely post judgment motion was considered

.

Appellants made no effort to have their “additional attached record” admitted

as evidence . Without need to determine whether any particular part of the material

does or does not appear elsewhere in the record, Aspri moves to strike pages 236

th rough 496 of the Clerk’s Record and all references thereto in any briefing in this

case.

2 Assuming the December 31 motion was a permitted amended motion for new trial (Tex. R. Civ. P. 329(b))

, March 24 is more than 105 days after the December 1, 2014 judgment. Even if properly asked to do so, the trial court had no jurisdiction to consider any “new evidence”

submitted at that late date. See Lane Bank Equip. Co. v. Smith S. Equip., Inc.

, 10 S.W.3d 308, 310 (Tex. 2000) (citing Philbrook v. Berry

, 683 S.W.2d 378, 379 (Tex. 1985) (a timely filed motion extends the trial court’s jurisdiction over its judgment up to an additional seventy

- five days, depending on when or whether the court acts on the motions)).3

20140366.20140366/2199612.1 Aspri respectfully asks the Court to strike from the record all materials

comprising pages 236 through 496 of the Clerk’s Record and for all other relief to

which Aspri is entitled.

Respectfully submitted,

H IRSCH & W ESTHEIMER

, P.C.

By: /s/ Michael D. Conner

Michael D. Conner

State Bar No. 04688650

Email: mconner@hirschwest.com Eric Lipper

State Bar No. 12399000

Email: elipper@hirschwest.com

1415 Louisiana, 36 th Floor Houston, Texas 77002 Telephone: (713) 220

- 9162 Facsimile: (713) 223

- 9319

ATTORNEYS FOR APPELLEE ASPRI INVESTMENTS, LLC4

20140366.20140366/2199612.1 CERTIFICATE OF COMPLIANCE

I do hereby certify that this document complies with the typeface requirements

of Tex. R. App. P. 9.4(e) because it has been prepared in a prop ortionally spaced typeface using Microsoft Word in 14 point Times New Roman

.

/s/ Michael D. Conner

Michael D. Conner

CERTIFICATE OF SERVICE

I hereby certify that on this 12 th day of August , 20 15 , a true and correct copy

of the forgoing was served as follows:

Hari Prasad Kalakonda

Latha Kalakonda Shubha, LLC

5002 Newcastle Lane San Antonio, TX 78249

Via E

- Serve: smfoodmart@yahoo.com

,

/s/ Michael D. Conner

Michael D. Conner