APPEAL No. 14-14-00410-CV

r~—————— r TIT• [HflWIIW Mil I—TT—~—-T*TTTf

FILED IN

14th COURT OF APPEALS

HOUSTON, TEXAS

NOV 3 0 2015

DOV AVNI KAMINETZKY a/k/a DOV K. AVNI )( Christopher a. prine

Appellant )( L CLERK

v. )(

DOSOHS I, LTD, Appellee )(

[APPEAL of 5-15-14 FROM #1997^0590/11 JDC;HARRIS COUNTYJX

APPELLANT DOV K.AVNI's ORIGINAL OPPOSED MOTION TO TAKE JUDICIAL"!

OF RECORDS OF #14-14-00410-CV -DISMISSED ON 8-27-15 BY 14COA's "B-3" PANEL

and OTHER UNDISPUTABLY CORRECT RECORDS OF THIS APPELLATE COURT

PROVING MOVANT'S ALLEGATIONS OF DEPUTY CLERK WARD'S UNLAWFUL ACTS

TO DISMISS APPEAL BYTAMPERINGS IN 14C0A RECORDS AND FRAUDS ON "B3" PANEL and MOVANT.

THEN RECALL THE "11-6-2015 MANDATE "AND RULE ONAPPELLANT'S PENDING MOTIONS.

AND ALTERNATIVELY

IF EITHER FOREGOING MOTION IS DENIED BEFORE COURT'S 2015 TERM ENDS.TREAT

THIS MOTION fas supplemented by 11-301 AS ORIGINAL PROCEEDING FOR MANDAMUS

TO THE HONORABLE JUSTICES OF THIS 14th COURT OF APPEALS OF TEXAS.

APPELLANT DOV K. AVNI a/k/a DOV AVNI KAMINETZKY ["Dov"] respectfully prays for the

taking of judicial notice by the members of this "B-3" panel who were not privy to the tamperings

in the record ofthis appeal by deputy Clerk Troy Ward (proven by documents attached here and

to Movant's pending motion for extension oftime for rehearing-filed 9-25 .supplemented 9-28-15

in anticipation of10-13-15 delivery of5th Supplemental Clerk Record Dov hasdesignated 9-4-15)

Dov asks hon. justices Boyce.Busby and Brown -who unanimously decided on August 27,2015

to dismiss this appeal-acting in total reliance on fraudulent representations of Deputy

Chief Clerk TROY D. WARD ["WARD"] who knowingly and willfully omitted from the record of

this case important items prior to 8-26-15 rushed setting ofdismissal hearing onnext morning

without notice to Dov-to take judicial notice of Ward's unlawful acts,then recall 11-6-15 mandate

I.

DEPUTY WARD'S UNLAWFUL ACTS PROVEN BELOW MATERIALLY ALTERED THE RECORD ADVERSLY TO DOV

(1) omission/deletion of 124 page supplemental clerk record of 5-13-15(!)

(2) paying no attention and not referencing any of the other supplemental

Clerk Records ordered and paid by Dov.Appellee ordered no record (!)

(3) reinstating on his own decision this appeal-abatedsince May 7.2015

without judicialreview -as this court customarily does after abatement

and based on 10 page selective skinny record with 325 pages missing.

Movant attaches and incorporates hereappendix with case records.relevant appellate rules

and authorities andwill supplement them by Monday, 11-30 as Court reopens after holiday
INDEXOF EXHIBITS FROM RECORDS OF APPEAL #14-14-00410-CV PROVING MOVANT'S ALLEGATIONS OF

•CLERK'S UNLAWFUL ACTS TO DISMISS APPEAL BY FRAUDS, and APPELLATE AUTHORITIES IN SUPPORT

EX# DOCUMENT DESCRIPTION DATEORIG./FILED RECORD REFERENCE

* 1 DOCKET OF APPEAL #14-14-00410-CV-as of11-25-2015 MAY 28,2014 [FN 1] "Post Dismisaal Docket"

2.14COA RELEASED ORDERS AND.OPINIONS [11-6-15] NOV. 25,2015 txcourts.gov(14coa

3.LIST OF 14TM COA RELEASED ORDERS AND OPINIONS NOV.25,2015 txcourts.gov(14coa

FOR 2015 4th QUARTER - STARTING OCTOBER 1, 2015

[including CIVIL ORDERS RELEASED ON OCT 15-2015 WHICH

DEPUTY CLERK WARD FABRICATED-STATING THAT DOV'S

MOTIO FOR EXTENSION OF TIME TO FILE HIS MOTION FOR

REHEARING "WAS GRANTED IN PART. DENIED IN PART"?!!]

J 4.14COA RELEASED ORDERS AND OPINIONS [10-15-15] NOV.25,2015 txcourts.gov(14coa

NO SCINTILLA OF ANY ORDER ENTERED BY ANY

JUDGE OR PANEL IN DOV'S DISMISSED APPEAL

#14-14-00410-CV- PROVING CRIMINAL ACTS OF

TAMPERING ETC BY DEPUTY CLERK T.WARDf!)

5. RELEASED ORDERS AND OPINIONS OF 14TM COA

6 UNSIGNED JUDGMENT WITH NO 'PER CURIAM" DESIGNATION

AUG, 27,2015 txcourts.gov(14coa) 5.

AUG. 27,2015 txcourts.gov(14coa)

7 MEMORANDUM OPINION BYB-3 PANELDISMISSING APPEAL AUG. 27,2015 txcourtS.gov(14coa)

PROVING THAT (A) DEPUTY CLERK WARD MANIPULATED THE

DOCKET OF APPEAL #14-14-00410-CV UPON ITS 8-26-2015 HURRIED

SETTING FOR DISMISSAL DELETING THEREFROM ALL REFERENCES

TO5-7-15 ORDER ABATING APPEAL AND 2 LATER FILED RECORDS[![

DOING SO IN CONSPIRACY WITH APPELLEE'S ATTORNEY N. PARMA -

WHO FILED MOTION TO DISMISS THE APPEAL WITHOUT CONFERENCE

WITHOUT PROVIDING EVIDENCE.WHILE CONCEALING MATERIAL FACTS

WITHOUT SERVING DOV THEREWITH -ALL DEFECTS KNOWN TO WARD!

AND ALSO PROVING THAT

ALL THREE "B-3" PANEL JUSTICES ARE RECUSABLE AS FACT WITNESSES

REGARDING WHAT DETAILS WERE IN THE DOCKET THEY SAW 8-27-15

AND.ALTERNATIVELY TO 2nd PRECEDING PARAGRAPH.PROVINGTHAT

ONEOR MORE OFTHE 3 JUSTICES OFTHE "B-3"PANEL,ACTING IN

CONSPIRACY WITH DEPUTY CLERK WARD (AND PERSON SETTING PANEL)

AND APPELLEE'S ATTORNEY PARMA TO BRING ABOUTCASE DISMISSAL

WHILE ASSURING THE NON-CONSPIRING MEMBERS OF THE PANEL WHO

WERE NOT INFORMED OF 5-7-15 ABATEMENT AND 5-12-05 SUPPLEMENT

INCORPORATING BY REFERENCE.AS IF COPIED VERBTAIM RECORDS FILED 9-25-15 &9-28-15 IN#14-14-00410-CV

8 APPELLANT'S DESIGNATION OF 3rd SUPPLEMENTAL RECORD APRIL 16,2015 3SCR114-132; EX. "1"

9 INDEX OF APPELLANT'S 2nd SUPPLEMENTAL CLERK'SRECORD MAY 12,2015

10 PER CURIAM ORDERGRANTING APPELLANT'S 4-20-15 MOTION MAY 7,2015

11 14 COA "RELEASED ORDERS &OPINIONS"-for 05/07/2015 MAY7, 2015

12 INDEX OF APPELLANT'S 3rd SUPPLEMENTAL CLERK'S RECORD JUNE 3,2015

2SCR ; EX."1"

EX. "1" at 05-07-2015

txcourts.gov(14coa)

3SCR1-3; EX."1"

13 DOSOHS I.Ltd "SECOND MOTION TO DISMISS"-BY N.A.PARMA AUG.5, 2015 txcourts.gov(14coa);Ex.1

-a-
[ LIST OF EXHIBITS CONTINUEDl

EX# DOCUMENT DESCRIPTION DATE ORIG./FILED RECORD REFERENCE

5 CMH HOMES v.Perez 340 S.W.3d 444 (Tex 2011) May 27,2011 CourtListener.com

(alternative treatment of appeal as mandamus) [discovered 11-24-15]

16 In re D&KW Family LP .Relator [01-11-00276-cv] AUG.9,2012 CourtListener.com,

following CMH HOMES v.Perez 340 S.W.3d 444

(Tex.2011) (alternative treatment as mandamus) [discovered 11 -24-151

II.NO PREJUDICE WILL ACCRUE TO APPELLE FROM GRANTINGTHIS DUAL PRONG MOTION

No prejudice will accrue to appellee-who has paid todate nothing to present record tothis panel

hi

PRO-SE MOVANT'S PRAYER FOR RELIEF/ALTERNATIVELY PETITIONER FOR MANDAMUS RELIEF

WHEREFORE pro-se Movant Dov K.Avni prays that themembers ofthis honorable B-3 appellate

panel who were not privy tothe cospiracy between Deputy Clerk Troy Ward ["Ward"]and Appellee's

counsel Nicholas Arthur Parma ["Parma"] and otheryetto be identified aiders, abbetters and Court

insiders todismiss this appeal for alleged "want ofprosecution" after Movant/Appellant caused and

paid for Original Clerk Record and three supplements in preparation for filing his brief after needed

additional and amended findings offact amd conclusions oflaw are filed by Trial Judge Mike Miller

-as this court ordered on may 7,2015 -will takejudicial notice ofthe blatant criminal tamperings in

the selective, truncated and thus misleading record presented tothem 8-27-15 by Deputy Ward so

to achieve the dismissal ofthis meritorious appeal dealing with atrocious abuses ofdiscretion by

the hon. trial judge Michael David Miller who dismissed Cause #.1997-40590 on March 23,2011,

then denied Dov's diligent attempts to reinstate thatcase andthree years later has permanently

enjoined Dov from asserting hislawful property rights-so to protectformer Judge Mark Davidson

who has backdated ,or alternatively unlawfully concealed temporary anti-suit injunctive order dated

5-25-2000 that was neverentered intothe minutes of#97-40590,nor served on Dov by 11th JDC at

any time prior to Appellee's new trial court attorneys Sherer &Crow doing so in September 2013(!)

Movant asks the Honorable panel to order the 14thcoa clerk to demand recall of the mandate from

The 11th District Court and grant Dov at least 28 days to file his motion forrehearing afterruling on

pending motion of 9-25-15 to extend time for filing motion for rehearing (supplemented 9-28-15 and

incorporated) and alternatively treat this dual prong motion as application for mandamus reljef.

/w (H-u-lr)

.DovK. Avni-pro-se party in #14-14-00410-cv

150-B Forest Drive, Jericho, NY 11753
-3- Cell#516-318-3791 E-Mail: dovduba1@aol.com

FOOTNOTES TO THE PRECEDING PROOFS OF MOVANT'S STATEMENTS IN THE FOREGOING INDEX

TFN11 the docket of Appeal #14-14-00410-CV (as of 9-5-15) proves that no court order was entered after notice was given

to Dovby 3 justices panel or their leader on July 3.2015as falsely represented by 14thcoa Clerk-acting by deputy clerk

. Troy P. Wardiandfurther proves the filing and content of Dov's 3SCR-delivered 5-13-15 was deleted from appeal record

TFN21 the docket of Appeal#14-14-00410-CV (as of 5-28-15) proves that the filing and content of Dov's 3SCR.deliveredon

. 5-13-15 by Chris Daniel'sCivil Post Judgment Deputy ClerkDuaneGilmore was deleted from appeal record by Mr.Ward(l)

[FN3] omission of the emailed Proposed Findings by Appellee (on 5-13-15) Dov's 5-29-15 request for additional,

. findings of fact and judge Miller's deial thereof 6-1-15 from Gilmore's 3SCR (of 7-2-15) proves he co-conspired(l)

CERTIFICATE OF ATTEMPTED CONFERENCE WITH APPELLEEE'S SHERER &Assoc. ATTORNEYS

Appellant/Movant hereby certifies he mailed last Friday (11-20-2015) conference letterto Appelee's

lawfirm in good faith attempt to cause Mr.Parma to agree to this dual pronged motion -which Dov

plannedto file by 11-25-15 after receiving on 11-16 from his wife [who travelledthat day to Houston

from her Jericho.NY home] the "11-6-15" notice letter mailedby of for DeputyClerkWard-delivered

only on Friday 11-13-15 in Jericho.NY. Mr. Parmahas not yet contacted Movanttodate priorto filing

this dual prong motion by US Mail- from USPS downtown Houston center at 1500 Hadley St. Movant

will try again to confer with Parms by phone and/or -by E-Text-prior to supplementing them 11-30-15

when this courtjocated in City of Houston at Harris County.TXopens for business with other courts

UNTIL PARMA UNEXPECTEDLY NOTIFIES MOVANT OTHERWISE/THESE MOTIONS ARE"DEEMED OPPOSED"

.DovK. Avni-pro-se partyin #14-14-00410-cv

150-B Forest Drive, Jericho, NY 11753

Cell# 516-318-3791 E-Mail: dovduba1@aol.com

CERTIFICATE OF MAILING

COURTSEY COPIES -WITHOUT EXHIBITS BUT WITH INDEX THEREOF TO BE SERVED ON "8-27-15 LIST"

2. NICHOLASA.PARMA- at SHERER &ASSOCIATES 11120 WURZBACH RD. 3100,San AntonioTX

78130-by PRIORITY US Mail, CM/RRR# [mailed 11-25-15)

2^5 JUDICIAL OFFICIALS LISTED IN 8-27-15 'OPINION DISTRIBUTE LIST'-EXCLUDING Hon.MICHAEL D.MILLER

(DURING PENDENCY OF PERMANENT INJUNCTION HE ISSUED ON 3-31-14 IN #1997-40590/11JDC]

TO BE MAILED FIRST CLASS WITH CERTIFICATES OF MAILING MONDAY.11-30-15 TOGETHER

WITH 1st SUPPLEMENT TO THIS MOTION+AFFIDAVIT -BUT EXCLUDING THE CASE EXHIBITS

•INASMUCH AS NONE OF THEM EXHIBITED ANY INTEREST IN LEARNING THE ACTUAL FACTSf!)

DOV K. AVNI- PRO-SE MOVANT

-4-
APPEAL No. 14-14-00410-CV

DOV AVNI KAMINETZKY a/k/a DOV K. AVNI )(

Appellant )(

v. )(

DOSOHS I, LTD, )(

Appellee )(

[APPEAL of 5-15-14 FROM #1997-40590/11 JDC;HARRIS COUNTY.TX

EXHIBIT No. " -

TO APPELLANT'S ORIGINAL MOTION [of 11-25-15 ]TO RECALL

THE "MANDATE"- ALLEGEDLY ISSUED 11-6-2015 BY THE

CLERK OF THIS 14TM COURT-AFTER ITS DEPUTY WARD TAMPERED

WITH CASE RECORD. FABRICATED 14COA PANEL'S ORDERS AND

DEFRAUDED MOVANT. OR TREAT IT AS ORIGINAL PROCEEDINGTO BE DECIDED, IF NEEDED-BY MANDAMUS to TX SUPREME COURT
Case Detail

CASE:

DATE FILED:

CASE TYPE:

STYLE:

V.:

ORIG PROC:

TRANSFER FROM:

TRANSFER IN:

TRANSFER CASE:

TRANSFER TO:

TRANSFER OUT:

PUB SERVICE:

14-14-00410-CV

05/28/2014

UNKNOWN CIVIL CASE TYPE.

DOV AVNI KAMINETZKY

DOSOHS I, LTD

NO

WWW.14THCOA.COURTS.STATE.TX.US

APPELLATE BRIEFS

Date

02/18/2015

CASE EVENTS

Date

11/06/2015

11/06/2015

11/05/2015

10/26/2015

10/26/2015

10/15/2015

10/13/2015

Event Type

Brieffiled - oral argument requested

Event Type

Case stored

Mandate issued

Mandate due to be

issued

Motion for rehearing

was not filed

Motion for rehearing

due

Motion for extension of

time to file motion for

rehearing disposed

Supplemental clerks

record filed

Description

Civil

Appellant

Appellant

Page 1 of6

Description Document

Appellant

Disposition

BRIEF

NOTICE

GRANTED IN PART AND

DENIED IN PART

[ PDF/9.22 MB ]

[ PDF/92 KB1

Document

BILL OF COST

MANDATE

t PDF/61

KB]

[ PDF/42

KB|

CPDF/103

KB]

[PDF/90

KB]

[PDF/90

KB]

htlp://vvww.search.txcoiirts.gov/Case.aspx?cn=14-14-00410-CV&coa^coal4 11/25/2015
Case Detail Page 2 of6

Date 1Event Type 1Description J Disposition j Document

10/12/2015 ; Petition for review due

in Supreme Court

Motion for extension of

• time to file motion for i Appellant

rehearing filed

\- - -- -

MOTION [ PDF/8.53

MB] 09/30/2015

09/28/2015

09/11/2015

09/11/2015

09/04/2015

Motion for extension of ;

tinie to file motion for Appellant

rehearing filed

Motion for rehearing

was not filed

Motion for rehearing

due

Letter filed Appellant

08/27/2015 : issued i DISMISSED

08/27/2015 Motion to dismiss

' disposed : Appellee ; GRANTED

08/27/2015 : Motion to dismiss

; disposed • Appellee i GRANTED

08/26/2015 : Submitted

08/26/2015 I Case ready to be set J ...

08/17/2015 Response due

08/05/2015 j Motion to dismiss filed i Appellee

Appellant

;—- ---•

08/05/2015 Notice of late brief

07/23/2015 • Appellants brief due

Case reinstated

•':.

07/03/2015

07/02/2015 ; Supplemental clerks

; record filed

• Hearing record due

1 Appellant

06/29/2015

06/29/2015 { Supplemental clerks

\ record due 4

06/03/2015 s Supplemental clerks

record filed ; Appellant

05/07/2015 Motion disposed t Appellant \ GRANTED _ ^ .•!

05/07/2015 i Order issued ABATED

05/01/2015 > Response filed ; Appellee

05/01/2015 : Response due

04/20/2015 ' Motion filed i Appellant

http://www.search.txcoiirts.gov/Case.aspx?cn=14-14-00410-CV&coa=coal4

LETTER

[PDF/533

MB]

[ PDF/2.16

MB]

[ PDF/69

KB]

[ PDFA33

MB]

[ PDF/93

KB]

MEMORANDUM

OPINION

NOTICE

MOTION

NOTICE

NOTICE

NOTICE

NOTICE

ORDER

NOTICE

[ PDF/84

KB]

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KB]

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11/25/2015
Case Detail

Date

04/16/2015

04/10/2015

03/21/2015

03/12/2015

03/09/2015

02/25/2015

02/24/2015

02/23/2015

02/18/2015

02/12/2015

02/06/2015

02/02/2015

01/29/2015

01/29/2015

01/27/2015

01/26/2015

01/20/2015

01/05/2015

12/23/2014

12/22/2014

12/16/2014

12/05/2014

12/04/2014

12/01/2014

11/26/2014

Event Type

Notice of late brief

Amended brief due

Appellees brief due

Order entered

Response filed

Letter filed

Description

Appellee

Appellant

Supplemental clerks

record filed Appellant

Motionto dismissfiled •; Appellee

Brief filed - oral

argument requested

Appellants brief due

Letterfiled ; Appellant

Letterfiled ) Appellant

Order entered

Appellant

Motion for extension of j

time to file brief

disposed

Replyto response or

motion filed

: Response filed

! Motion for extension of

; time to file brief filed

r Appellants brief due

j Motion for extension of

; time to file brief

\ disposed

\ Letter filed

. Motion for extension of

. time to file brief filed

\ Supplemental clerks

J record due

Supplemental clerks

record filed

/ Appellants brief due

', Letter filed

Appellant

Appellee

Appellant

Appellant

Appellant

Appellant

Appellant

Appellant

Disposition

DENIED

GRANTED

http://www.search.txcourts.gov/Case.aspx?cn=l4-14-00410-CV&coa=coal4

Document

RESPONSE

LETTER

NOTICE

MOTION

BRIEF

NOTICE

LETTER

LETTER

ORDER

NOTICE

LETTER

LETTER

Page 3 of6

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[ PDF/1.71

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[PDF/90

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[PDF/5.40

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11/25/2015
Case Detail

Date

11/26/2014

11/25/2014

10/28/2014

10/28/2014

10/13/2014

09/11/2014

09/11/2014

09/04/2014

08/27/2014

08/20/2014

08/18/2014

08/12/2014

08/12/2014

08/08/2014

08/06/2014

08/05/2014

07/29/2014

07/29/2014

06/20/2014

06/12/2014

06/12/2014

06/10/2014

06/09/2014

06/05/2014

05/29/2014

05/29/2014

Event Type

Extension of time to file

clerks record disposed

Extension of time to file

clerks record filed

Letter filed

Order entered

Appellants brief due

Motion for extension of

time to file notice of

appeal disposed

Clerks record due

Description

District Clerk

District Clerk

Appellant

Appellant

District Clerk

Clerks record filed

Notice of late record

Clerks record due

Clerks record due

Letter filed

Letter filed

; Appellant

! District Clerk

District Clerk

; District Clerk

: Appellant

J Appellant

Extension oftime to file

clerks record disposed

Extension of time to file

clerks record filed

Notice of late record

Clerks record due

Record due

Docketing statement

filed

Docketing statement

due

Mediation docketing

statement due

Mediation docketing

statement returned

Court fee due

Fee paid

Notification received

that no record was

taken

Court reporters notice

to court regarding

status of record

District Clerk

District Clerk

District Clerk

Appellant

Appellant

Appellee

Appellee

Appellant

Appellant

Court Reporter

Disposition

GRANTED

DENIED AS MOOT

GRANTED

http://www.search.txcourts.gov/Case.aspx?cn==14-14-00410-CV&coa=coal4

Document

EXTENSION

NOTICE

NOTICE

EXTENSION

DOCKETING

STATEMENT

MEDIATION

DOCKETING

STATEMENT

Page 4 of6

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[ PDF/6.66

MB]

[PDFA96

KB)

COURT

REPORTER'S [PDF/120

INFORMATION KB ]

SHEET

11/25/2015
Case Detail

{ Date

05/28/2014

05/28/2014

05/28/2014

05/28/2014

05/16/2014

05/15/2014

04/19/2014

03/31/2014

CALENDARS

Event Type

Court reporters

information sheet sent

Letter issued by the

court

Letter issued by the

court

Case began in court of

appeals

Motion for extension of

time to file notice of

appeal filed

Notice of appeal filed in

trial court

Request for findings of

fact and conclusions of

law

Judgment signed by

trial courtjudge

Description

Court Reporter

Court Reporter

Both parties

Appellant

Disposition Document

Page 5 of6

[ PDF/100

KB]

[ PDF/92

KB)

[ PDF/92

KB]

LETTER OF [PDF/158

ASSIGNMENT MB ]

[ PDF/631

MB]

Set Date Calendar Type Reason Set

11/06/2015

11/08/2021

Case Stored

Retention

Case stored

Date civilcase will be destroyed (6 yrs

after mandate)

PARTIES

Party

Kaminetzky,Dov Avni

Dosohs I, LTD

PartyType

Appellant

Appellee

TRIAL COURT INFORMATION

COURT:

COUNTY:

COURT JUDGE:

COURT CASE:

COURT REPORTER:

PUNISHMENT:

11TH DISTRICT COURT

HARRIS

HONORABLE JUDGE. 11TH DISTRICT COURT

1997-40590

TERRI ANDERSON

Representative

Dov Avni Kaminetzky

Eric David Sherer

Nicholas Arthur Parma

http://www.search.txcourts.gov/Case.aspx?cn=14-14-00410-CV&coa=coal4 11/25/2015
Case Detail Page 6 of 6

http://wvvAv.search.fcccourts.gov/Case.aspx?cn=14-14-00410-CV«&coa=coal4 11/25/2015
APPEAL No. 14-14-00410-CV

DOV AVNI KAMINETZKY a/k/a DOV K. AVNI )(

Appellant )(

v. )(

DOSOHS I, LTD, )(

Appellee )(

[APPEAL of 5-15-14 FROM #1997^0590/11 JDC;HARRIS COUNTY.TX

EXHIBIT No. "3 "

TO APPELLANT'S ORIGINAL MOTION [of 11-25-15 ]TO RECALL

THE "MANDATE"- ALLEGEDLY ISSUED 11-6-2015 BY THE

CLERK OF THIS 14th COURT-AFTER ITS DEPUTY WARD TAMPERED

WITH CASE RECORD. FABRICATED 14COA PANEL'S ORDERS AND

DEFRAUDED MOVANT. OR TREAT IT AS ORIGINAL PROCEEDINGTO BE DECIDED. IFNEEDED-BY MANDAMUS to TX SUPREME COURT
Released Orders/Opinions Page 1 of 1

Released Orders/Opinions

Enter a year and quarter to view a list of Released Orders/Opinions. 2015 v Jul-Sep v

! Refresh

October November December

10/29/2015

10/28/2015

10/27/2015

10/26/2015

11/25/2015

11/24/2015

10/23/2015 11/23/2015

10/22/2015

10/21/2015

10/20/2015 11/20/2015

11/19/2015

11/18/2015

11/17/2015

10/15/2015

10/14/2015

10/13/201. 11/13/2015

10/12/201. 11/12/2015

11/10/2015

10/09/2015

10/08/201!

10/07/201!

10/06/201!

-

11/06/2015

10/05/201! 11/05/2015

| 11/04/2015

11/03/2015

10/02/2015 11/02/2015

10/01/2015

http://www. search.txcourts.gov/docketsrch.aspx?coa=coa14&s=c 11/25/2015
APPEAL No. 14-14-00410-CV

DOV AVNI KAMINETZKY a/k/a DOV K. AVNI )(

Appellant )(

v. )(

DOSOHS I, LTD, )(

Appellee )(

[APPEAL of 5-15-14 FROM #1997-40590/11 JDC;HARRIS COUNTY.TX

EXHIBIT No. " k "

TO APPELLANT'S ORIGINAL MOTION [of 11-25-15 ]TO RECALL

THE "MANDATE"- ALLEGEDLY ISSUED 11-6-2015 BY THE

CLERK OF THIS 14TM COURT-AFTER ITS DEPUTY WARD TAMPERED

WITH CASE RECORD, FABRICATED 14COA PANEL'S ORDERS AND

DEFRAUDED MOVANT, OR TREAT IT AS ORIGINAL PROCEEDINGTO BE DECIDED, IF NEEDED-BY MANDAMUS to TX SUPREME COURT
Released Opinions

RELEASED ORDERS & OPINIONS FOR 10/15/2015

Civil Causes Decided

Case Number Style Disposition Judges

14-14-00201-CV

Opinion by

Justice [PDF]

McCally

14-14-00408-CV

Memorandum

Opinion Per [PDF]

Curiam

' i ' Houston Methodist San Jacinto Hospital v. Ten nn.i-r.rr-r. A.m. 1 Justice Jamison , . r I REVERSED AND . .. .. _ „ Ford [ RrMnrCrn Justice McCally Appeal from 295th District Court ofHarris County j 1Justice Wise

j J

Giovanny Laguan v. R.D. Parikh | §Justice Boyce

Appeal from County Court at Law #4 of Fort Bend j DISMISSED j Justice Busby

County j I Justice Brown

1 |

14-14-00823-CV

Opinion by

Justice Boyce

14-14-00823-CV

Concurring

Opinion by

Chief Justice

Frost

Texas Transportation Commission and Ted

Houghton, in his Official Capacity as Chair of

the Texas Transportation Commission v. City of

Jersey Village

Appeal from 165th District Court of Harris County

Texas Transportation Commission and Ted

Houghton, in his Official Capacity as Chair of

the Texas Transportation Commission v. City of

Jersey Village

Appeal from 165th District Court of Harris County

REVERSED AND

RENDERED

CONCURRING

Chief Justice Frost

Justice Boyce

Justice McCally

Chief Justice Frost

Justice Boyce

Justice McCally

14-14-01007-CV

Memorandum

Opinion Per [PDF]

Curiam

14-15-00686-CV

Memorandum

Opinion Per [ PDF]

Curiam

Thomas Beets and Leslie Beets v. National

Collegiate Student Loan Trust 2005-2

Appeal from 344th District Court of Chambers

County

Margnus Ibe v. Pennymac Loan Services, LLC

Appeal from County Court at Law No 1 of Fort

Bend County

DISMISSED

DISMISSED

Justice Boyce

Justice Busby

Justice Brown

Chief Justice Frost

Justice Christopher j

JusticeDonovan 1

Civil Orders

Case Number Style Disposition Judges

14-12-01088-CV

Order [ PDF ]

14-14-00257-CV

Order [ PDF ]

Remote Control Hobbies L.LC. A/K/A and

D/B/A Remote Control Hobbies v. Airborne

Freight Corporation D/B/A Airborne Express

Successor by Merger to DHL Express

Appeal from Co CivilCt at Law No 1 of Harris

County

Hugh Forrest v. Technical and General Guaranty

Co., S.A.

Appeal from 165th District Court of Harris County

14-15-00279-CV

Order [ PDF ]

14-15-00320-CV

Order [ PDF ]

Loren Rose Jeremy v. Nicholas Dusan Jeremy

Appeal from 306th District Court of Galveston

County

Thomas R. Wright v. PlainsCapital Bank

Appeal from 295th District Court of Harris County

"

14-15-00505-CV

Order [PDF]

14-15-00699-CV

Order [PDF]

Uwakwe C. Oko and Victoria L Oko v. Tony Ali,

Junior Properties and Everbank

Appeal from 400th DistrictCourt of Fort Bend

County

William Satterwhite, Jr. v. Christopher Evans

and Yi Zhang

Appeal from CoCivil Ct at LawNo 2 of Harris

County

1

1

1

i

!

i

1

1

1

14-15-00763-CV

Order [ PDF ]

Estate of Linda Kuebler Hinkley, Deceased

Appeal from Probate Court of Galveston County

http://www.search.txcourts.gov/Docket.aspx?coa=coal4&FullDate=10/15/2015

Page 1 of 3

10/26/2015
Released Opinions

Case Number 1 Style Disposition 1Judges

14-15-00785-CV » ^verbankv. SeedergyVentures, Inc., a

rPDFl 1CorPorat'on

j Appeal from 190th District Court of Harris County

! I

S 1 ABATED |

____TM_i_______ .. __J

14-15 00864-CV j in the Interest ofaiM.S., Child

Order [ PDF ] Appeal from 314th District Court of Harris County

j '•••—'

Criminal Causes Decided

Case Number Style Disposition Judges

14-14-00272-CR

Opinion by

ChiefJustice [PDF]

Frost

14-14-00421-CR

Opinion by

Justice [PDF]

Christopher

Jeremy Patrick Shakesnider v. The State of

Texas

Appeal from 400th District Court of Fort Bend

County

Rebecca Victoria Humaran v. The State of Texas

Appeal from 239th District Court of Brazoria

County

AFFIRMED

AFFIRMED

Chief Justice Frost

Justice Christopher

Justice Donovan

Justice Christopher

Justice Donovan

Guiney

14-14-00682-CR

Memorandum

Opinion by [PDF]

Justice Brown

14-14-00688-CR

Memorandum

Opinion by [PDF]

Justice Brown

Troy Lee Bridges v. The State of Texas

Appeal from 344th District Court of Chambers

County

Gary Martins v. The State of Texas

Appeal from 176th DistrictCourt of HarrisCounty

AFFIRMED

AFFIRMED

. , ._J

Justice Boyce

Justice Busby

Justice Brown

Justice Boyce |

Justice Busby |

Justice Brown j

14-14-00847-CR

Opinion by

Justice [PDF]

Jamison

14-15-00647-CR

Memorandum

Opinion Per [ PDF ]

Curiam

14-15-00665-CR

Memorandum

Opinion Per [ PDF ]

Curiam

Carlos A. Arias v. The State of Texas

Appeal from Co Crim Ct at Law No 13 of Harris

County

William Charles Wingate v. The State of Texas

Appeal from 232nd District Court of Harris County

AFFIRMED

DISMISSED

Chief Justice Frost

Justice Jamison

Justice Busby

Justice Boyce

Justice Busby

Justice Brown

Miyaggi Aleman v. The State of Texas

Appeal from 174th DistrictCourt of HarrisCounty DISMISSED

1

Chief Justice Frost

Justice Christopher

Justice Donovan

Criminal Orders

Case Number Style Disposition Judges

\ i 14-14-01011-CR Margaret Renee Mayerv. The State of Texas 1

Order [PDF] 1 Appeal from 230th District Court of Harris County j

' I 14-15-00256-CR jUlessia Procter v. The State of Texas

Order [PDF] j Appeal from 208th District Court of Harris County 1 . _ J

14-15-00300-CR

14-15-00301-CR

Lashonda Deon Jones v. The State of Texas

Appeal from 221st District Court of Montgomery

County

Lashonda Deon Jones v. The State of Texas

Appeal from 221st District Court of Montgomery

County

14-15-00733-CR Glenn E. Marsh v.The State of Texas

1 Appeal from Co Crim Ct at Law No 3 of Harris

Order [PDF] JTM' 1 County

To view or print PDF files you must have the Adobe Acrobat® reader. This software may be obtained without charge from Adobe.

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http://www.search.txcourts.gov/Docket.aspx?coa=coal4&FullDate=10/15/2015

Page 2 of 3

10/26/2015
Released Opinions Page 3 of 3

http://www.search.txcourts.gov/Docket.aspx?coa==coal4&FullDate=10/15/2015 10/26/2015
APPEAL No. 14-14-00410-CV

DOV AVNI KAMINETZKY a/k/a DOV K. AVNI )(

Appellant )(

v. )(

DOSOHS I, LTD, )(

Appellee )(

[APPEAL of 5-15-14 FROM #1997^0590/11 JDC;HARRIS COUNTY.TX

EXHIBIT No. (( *v «

TO APPELLANT'S ORIGINAL MOTION [of 11-25-15 ]TO RECALL

THE "MANDATE"- ALLEGEDLY ISSUED 11-6-2015 BY THE

CLERK OF THIS 14TM COURT-AFTER ITS DEPUTY WARD TAMPERED

WITH CASE RECORD. FABRICATED 14COA PANEL'S ORDERS AND

DEFRAUDED MOVANT. OR TREAT IT AS ORIGINAL PROCEEDINGTO BE DECIDED. IF NEEDED-BY MANDAMUS to TX SUPREME COURT
Released Opinions

RELEASED ORDERS & OPINIONS FOR 08/27/2015

Civil Causes Decided

Case Number Style Disposition Judges

14-13-00094-CV

Opinion by

ChiefJustice [PDF]

Frost

14-13-00988-CV

Memorandum

Opinion by

ChiefJustice

Frost

James Stearns v. Lisa Martens and Steams Pools

and Spas, Inc.

Appeal from 268th District Court of Fort Bend

County

T.C.M.A. Trucking, Inc. v. Mario Cisneros and

Felix A. Auz

Appeal from 165th District Court of Harris County

AFFIRMED IN PART Chief Justice Frost

AND REVERSED AND Justice Christopher

REMANDED IN PART jJustice Busby

JChiefJustice Frost

AFFIRMED jJustice Boyce

I Justice McCally

14-13-00989-CV 1

Opinion by i Felix A. Auz v. Mario Cisneros

ChiefJustice [PDF] j Appeal from 165th District Court ofHarris County Frost i

14-13-00989-CV j

Concurring {Felix A. Auz v. Mario Cisneros

Opinion by [PDF] j Appeal from 165th District Court of Harris County

Justice Boyce |

j

AFFIRMED IN PART Chief Justice Frost

AND REVERSED AND | Justice Boyce

REMANDED IN PART Justice McCally

{ChiefJustice Frost

CONCURRING jJustice Boyce

| JusticeMcCally

__ __ J

14-14-00137-CV

Memorandum

Opinion by [ PDF]

Justice Wise

14-14-00172-CV

Opinion by

Justice Brown

Dominic Marrocco v. Mark Hill j REVERSED AND

Appeal from 164th District Court ofHarris County ] RENDERED

j Katy Springs &Manufacturing, Inc. v.Joseph AFFIRMED AS

Favalora 1M0DIFIED

Appeal from 133rd District Court ofHarris County j

Justice Christopher

Justice Donovan

Justice Wise

Justice Boyce

Justice Brown 1

Justice Wise

14-14-00410-CV

Memorandum

Opinion" Per [PDF]

Curiam

14-14-00462-CV

Opinion by

Justice [PDF]

Christopher

Dov Avni Kaminetzky v. Dosohs I, LTD

Appeal from 11th District Court of Harris County

The State of Texas v. Treeline Partners, LTD., a

Texas Limited Partnership, Laroca Partners U,

LTD., a Texas Limited Partnership and CBS

Outdoor, Inc., a Delaware Corporation

Appeal from Co Civil Ct at Law No 3 of Harris

vCounty

Justice Boyce

DISMISSED jJustice Busby

jJustice Brown

!

REVERSED AND Justice Christopher

REMANDED | Justice "TuTWise

14-14-00768-CV j Memorandum j In the Interest of O.Z.O

Opinion by [PDF] j Appeal from 257th District Court of Harris County

Justice Brown j

14-14-00930-CV

Opinion by | Ex Parte Brett Scott

Justice [PDF ] j Appeal from 164th District Court of Harris County

Christopher |

AFFIRMED

AFFIRMED

Justice Christopher

Justice Brown

Justice Wise

1

Justice Christopher

Justice Brown

Justice Wise

., _J

14-15-00026-CV

Memorandum

Opinion Per [ PDF ]

Curiam

14-15-00101-CV

Opinion by

Justice [PDF]

McCally

DCR Mortgage III Sub I, LLCv. Lawrence C.

Math is

Appeal from 126th DistrictCourt of Travis County

Ricardo G. Cedillo, Jason C. Zehner, J. Russell

Davis and Davis, Cedillo & Mendoza, Inc. v.

Immobiliere Jeuness Establishment

Appeal from 215th District Court of Harris County

DISMISSED

REVERSED AND

REMANDED

Chief Justice Frost

Justice Christopher

Justice Donovan

Justice Boyce

Justice McCally

Justice Donovan

14-15-00556-CV

Memorandum

Opinion Per [PDF]

Curiam

In Re Christopher Spates

Appeal from 312th DistrictCourt of HarrisCounty DENIED

Justice Boyce

Justice McCally

Justice Donovan

http://www.search.txcourts.gov/Docket.aspx?coa=coa14&FullDate=08/27/2015

Page 1 of 3

9/3/2015
Released Opinions

Case Number Style Disposition Judges

14-15-00568-CV j j Memorandum jIn Re Jinsun LLC I GRANTED

Opinion by [PDF] j Appeal from 113th District Court of Harris County 1

JusticeBrown 1 1

Justice Christopher

Justice Brown

Justice Wise

14-15-00650-CV

Memorandum

Opinion Per [ PDF]

Curiam

14-15-00692-CV

Memorandum

Opinion Per [ PDF]

Curiam

In Re Colleen Roberts, etal j

Appeal from 152nd District Court of Harris County

| Shahem Barazi, The Black Stone Builder, Inc., |

andTheBlack StoneManagement, Inc. v. Zuher ) „„.,,„.,__ _ , . 1 DISMISSED Salameh J

Appeal from 295th District Court ofHarris County I

Chief Justice Frost

Justice Christopher

Justice Jamison

Chief Justice Frost

Justice Christopher

Justice Donovan

.... - ..... i

14-15-00713-CV |

Memorandum j In re J. Womack

Opinion Per [PDF ] | Appeal from ... ofGalveston County

Curiam j

j Justice Boyce

DISMISSED | Justice Busby Justice Brown

Civil Orders

Case Number Style Disposition Judges

14-13-00094-CV

Order [ PDF ]

14-14-00865-CV

Order [ PDF ]

James Stearns v. Lisa Martens and Stearns Pools

and Spas, Inc.

Appeal from 268th District Court of Fort Bend i

County

Coreslab Structures (Texas), Inc. v. Scottsdale |

Insurance Company I ABATED

Appeal from 55th District Court of Harris County j

14-15-00654-CV

Order [ PDF ]

14-15-00672-CV

Order [ PDF ]

Logan Young v. Choice Refined Products, LLC

Appeal from 295th District Court of Harris County

Connie Range, Trustee ofthe Martha Range f j j

Trust d/b/a Reliant Engineering and Machine, £ • I

US and Samuel Range v. Calvary Christian | ABATED I !

Fellowship I 1 J

Appeal from 234th District Court of Harris County ; i 1

Criminal Causes Decided

Case Number Style Disposition Judges

14-14-00142-CR j

j Robelio Aviles-Barroso v. The State of Texas

pinion y [PDF] Appeal from 337th District Court of Harris County Justice Boyce | Tr '

14-14-00142-CR j

Concurring jRobelio Aviles-Barroso v. The State of Texas Opinion by , . .from 33?th District Qoun ofHarrjs County

ChiefJustice 1

Frost !

1 j

AFFIRMED AS

MODIFIED

CONCURRING

Chief Justice Frost

Justice Boyce

Justice McCally

Chief Justice Frost

Justice Boyce

Justice McCally i

i

14-14-00473-CR j

Memorandum jJimmy Earl van-Cleave v.The State ofTexas

Opimonby j Appeal from 179th District Court of Harris County Justice Tr '

Donovan j

14-14-00514-CR j

1 PaulWayne Harrisv. The State of Texas Memorandum j ^ ,frQm 26gth Djstrjct Court of fon Bend

Opinion by [PDF] j J^r - , *• „ \. %County Justice Busby f '

AFFIRMED

AFFIRMED

Justice Boyce

Justice McCally

Justice Donovan

Chief Justice Frost

Justice Jamison

Justice Busby

14-14-00607-CR

Memorandum

Opinion by

ChiefJustice

Frost

Brandon Ray Morgan v. The State of Texas

Appeal from 338th DistrictCourt of HarrisCounty AFFIRMED

Chief Justice Frost

Justice Jamison

VisitingJudge Yates

http://www.search.txcourts.gov/Docket.aspx?.coa=coal4&FullDate=08/27/2015

Page 2 of 3

9/3/2015
Released Opinions

Case Number

14-14-00781-CR

Memorandum

Opinion by [ PDF]

Justice Boyce

14-14-00835-CR

Memorandum

Opinion by

ChiefJustice

Frost

14-14-00943-CR

Memorandum

Opinion by

ChiefJustice

Frost

[PDF]

[PDF]

14-15-00314-CR

Memorandum

Opinion Per [PDF]

Curiam

14-15-00315-CR

Memorandum

Opinion Per [ PDF]

Curiam

14-15-00316-CR

Memorandum

Opinion Per [ PDF]

Curiam

14-15-00594-CR

Memorandum

Opinion Per [PDF]

Curiam

14-15-00700-CR

Memorandum

Opinion Per [PDF]

Curiam

14-15-00712-CR

Memorandum

Opinion Per

Curiam

[PDF]

Criminal Orders

Style

Ex Parte Juan Raul Rojas v. The State of Texas

Appeal from Co Crim Ct at Law No 15 of Harris

County

Ex Parte Chidiebele Gabriel Okonkwo

Appeal from 434th Judicial District Court of Fort

Bend County

I

j David Sidney McKeand v.The State ofTexas

| Appeal from Co Crim Ct at Law No 7ofHarris

j County

Ronnie Thibodeaux v. The State of Texas

Appeal from Crim Dist Ct of Jefferson County

Ronnie Thibodeaux v. The State of Texas

Appeal from Crim Dist Ct of Jefferson County

Ronnie Thibodeaux v. The State of Texas

Appeal from Crim Dist Ct of Jefferson County

In Re James Thomas Green

Appeal from 248th District Court of Harris County

In Re Princella V. Ross-Steels

Appeal from 263rd DistrictCourt of HarrisCounty

j In re Ricky Dean Fowler

I Appeal from County Court at Law No 1of

j Galveston County

I Disposition

J AFFIRMED

AFFIRMED

| AFFIRMED

I

AFFIRMED

AFFIRMED

AFFIRMED

DENIED

DENIED

DISMISSED

Judges

Chief Justice Frost

Justice Boyce

Justice McCally

Chief Justice Frost

Justice Jamison

Justice Busby

Chief Justice Frost

| Justice Jamison

j Justice Busby

Justice Boyce

Justice Busby

I Justice Brown

Justice Boyce

IJustice Busby

Justice Brown

Justice Boyce

Justice Busby

Justice Brown

1Justice Christopher

Justice Brown

Justice Wise

Justice Jamison

Justice McCally

Justice Wise

Chief Justice Frost

Justice Christopher

Justice Donovan

Case Number Style Disposition Judges

14-14-00908-CR

Order [ PDF ]

14-15-00018-CR

Daniel Cruz v. The State of Texas

Appeal from 268th District Court of Fort Bend

County

Quincy Lee Johnson v. The State of Texas

Appeal from 208th District Court of Harris County

ABATED

ABATED

j

j

14-15-00111-CR Leiroi Mickele Daniels v. The State of Texas

Order [PDF] j Appeal from 230th District Court ofHarris County

1 PastorIsreal Diaz-Bonillav. The State of Texas

I Appeal from 182nd District Court ofHarris County

r " ~*

ABATED

ABATED

1

1

" """ r ' "" "

14-15-00640-CR | Ex Parte Michael Brent Sewell v.

Order (PDF ] ! Appeal from 338th DistrictCourt of HarrisCounty

To view or print PDF files you must have the Adobe Acrobat® reader. This software may be obtained without charge from Adobe.

Download the reader from the Adobe Web site

http://www.search.txcourts.gov/Docket.aspx?coa=coal4«&FullDate=08/27/2015

Page 3 of 3

9/3/2015
APPEAL No. 14-14-00410-CV

DOV AVNI KAMINETZKY a/k/a DOV K. AVNI )(

Appellant )(

v. )(

DOSOHS I, LTD, )(

Appellee )(

[APPEAL of 5-15-14 FROM #1997-40590/11 JDC;HARRIS COUNTY.TX

EXHIBIT NO.o" (p "

TOAPPELLANT'S ORIGINAL MOTION [of 11-25-15 ]TO RECALL

THE "MANDATE"- ALLEGEDLY ISSUED 11-6-2015 BY THE

CLERK OF THIS 14TM COURT-AFTER ITS DEPUTY WARD TAMPERED

WITH CASE RECORD. FABRICATED 14COA PANEL'S ORDERS AND

DEFRAUDED MOVANT. OR TREAT IT AS ORIGINAL PROCEEDINGTO BE DECIDED. IF NEEDED-BY MANDAMUS to TX SUPREME COURT
JUDGMENT

3ty£ iFourtmttlj Court of Appeals

DOV AVNI KAMINETZKY, Appellant

NO. 14-14-00410-CV V

DOSOHS I, LTD, Appellee

August 27, 2015

Today the Court heard appellee's motion to dismiss the appeal from the

judgment signed by the court below on March 31, 2014. Having considered the

motion and found itmeritorious, we order the appeal DISMISSED.

We further order that all costs incurred by reason ofthis appeal be paid by

appellant, DovAvni Kaminetzky.

We further order this decision certified below for observance.

^
APPEAL No. 14-14-00410-CV

DOV AVNI KAMINETZKY a/k/a DOV K. AVNI )(

Appellant )(

v. )(

DOSOHS I, LTD, )(

Appellee )(

[APPEAL of 5-15-14 FROM #1997-40590/11 JDC;HARRIS COUNTY.TX

EXHIBIT No. ""7 "

TO APPELLANT'S ORIGINAL MOTION [ of 11-25-15 ]TO RECALL

THE "MANDATE"- ALLEGEDLY ISSUED 11-6-2015 BY THE

CLERK OF THIS 14th COURT-AFTER ITS DEPUTY WARD TAMPERED

WITH CASE RECORD. FABRICATED 14COA PANEL'S ORDERS AND

DEFRAUDED MOVANT. OR TREAT IT AS ORIGINAL PROCEEDINGTO BE DECIDED, IF NEEDED-BY MANDAMUS to TX SUPREME COURT
Motion Granted; Appeal Dismissed and Memorandum Opinion filed August

Z /, Zujl5.

In The

Jftoitrtetttff Court o! Appeals

NO. 14-14-00410-CV

DOV AVNI KAMINETZKY, Appellant

V.

DOSOHS I, LTD, Appellee

On Appeal from the 11th District Court

Harris County, Texas

Trial Court Cause No. 1997-40590

MEMORANDUM OPINION

This is an appeal from a judgment signed March 31, 2014. The clerk's

record was filed September 4, 2014. No reporter's record was taken. No brief hasbeen filed.

On March 12, 2015, this court issued an order stating that unless appellant

submitted a brief on or before April 10, 2015, the court would dismiss the appeal
for want ofprosecution. See Tex. R. App. P. 42.3(b). Appellant did not respond.

On August 5, 2015, appellee filed a motion to dismiss for appellant's failure

to file a brief. Appellant did not respond.

Accordingly, appellee's motion to dismiss is GRANTED. The appeal is

ordered DISMISSED

PER CURIAM

Panel consists ofJustices Boyce, Busby, and Brown.
APPEAL No. 14-14-00410-CV

DOV AVNI KAMINETZKY a/k/a DOV K. AVNI )(

Appellant )(

v. )(

DOSOHS I, LTD, )(

Appellee )(

[APPEAL of 5-15-14 FROM #1997-40590/11 JDC;HARRIS COUNTY.TX

EXHIBIT No. "/T"

TO APPELLANT'S ORIGINAL MOTION [of 11-25-15 ]TO RECALL

THE "MANDATE"- ALLEGEDLY ISSUED 11-6-2015 BY THE

CLERK OF THIS 14TM COURT-AFTER ITS DEPUTY WARD TAMPERED

WITH CASE RECORD. FABRICATED 14C0A PANEL'S ORDERS AND

DEFRAUDED MOVANT. OR TREAT IT AS ORIGINAL PROCEEDINGTO BE DECIDED, IF NEEDED-BY MANDAMUS to TX SUPREME COURT
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Cited By (106)

This opinion has been cited by these opinions:

• In Re Service Corp. Intern., 355 S.W.3d 655 (Tex. 2011)

• in Re Santander Consumer USA Inc., 01-12-00728-CV (Tex. App. 2013)

• in Re Santander Consumer USA Inc., 01-12-00728-CV (Tex. App. 2013)

• in Re D & KW Family, L.P.. 01-11-00276-CV (Tex. App. 2012)

• Cole Distribution, Inc., Cole Chemical & Distributing, Ind., Princess Properties ...

Full List of Citations ©

Authorities (31)

This opinion cites:

• 950 Corbmdale v. Kotts Capital Holdings, 316 S.W.3d 191 (Tex. App. 2010)

• Acequip Ltd. v. American Engineering Corporation, 315 F.3d 151 (2d Cir. 2003)

• Amanda S. May v. Higbee Company, Doing Business as Dillard's ...

• Atsa of California. Inc., Plaintiff/cross-Claimant/appellant v. Continental Insurance Co.. Etc.

• Badiga v. Lopez. 274 S.W.3d 681 (Tex. 2009)

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CMH HOMES v. Perez, 340 S.W.3d 444 - CourtListener.com

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CMH HOMES v. Perez, 340 S.W.3d 444 (Tex. 2011)

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Texas Supreme Court

Filed: May 27th, 2011

Status: Precedential

Citations: 340 S.W.3d 444

Docket Number: 10-0688

Judges: Wainwright

Fingerprint: b7c6937c05a45d8a37a6fb751clc6bf052c53bfb

340 S.W.3d 444 (2011)

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CMH HOMES v. Perez, 340 S.W.3d 444 - CourtListener.com Page 3 of 9

CMH HOMES, et al., Petitioners,

v. .

Adam PEREZ, Respondent.

No. 10-0688. •

Supreme Court of Texas.

Argued February 3, 2011.

Decided May 27, 2011.

*446 Brendan K. McBride, The McBride Law Firm, Rio Grande City, David L. Rumley, Wigington Rumley Dunn LLP,

Corpus Christi, and Baldemar Gutierrez, Law Offices ofBaldemar Gutierrez, Alice, for Adam Perez.

Scott A. Brister, Lino Mendiola, Andrews & Kurth L.L.P., Austin, Jorge C. Rangel, The Rangel Law Firm, P.C., Corpus

Christi, for CMH Homes, Inc.

Augustin Rivera Jr., Dunn Weathered Coffey Rivera & Kapertism, P.C., Corpus Christi, for Bruce Robin Moore, Jr.

Justice WAINWRIGHT delivered the opinion of the Court.

Once more, this Court is presented with a question of the availability ofjudicial review of an interlocutory arbitration order.

In this consumer dispute, CMH Homes, Inc. and Adam Perez agreed to submit their claims to arbitration but could not

agree on an arbitrator. Because of this disagreement, the trial judge intervened and appointed an arbitrator to preside over

their dispute. CMH Homes filed an interlocutory appeal challenging this appointment, requesting in the alternative that its

appeal be treated as a mandamus petition. The court of appeals determined it was without jurisdiction and dismissed the

suit. We agree with the court of appeals' determination that Texas Civil Practice and Remedies Code section 51.016 does

not allow an interlocutory appeal of an order appointing an arbitrator. However, under these circumstances, CMH Homes's

appeal may properly be considered as a petition for writ of mandamus. We remand for the court of appeals to consider this

appeal as a petition for writ of mandamus.

I. Background

A. Facts andProcedure

On October 2, 2002, Adam Perez purchased a manufactured home from CMH Homes, with the help of salesman Bruce

Robinson Moore Jr. Vanderbilt Mortgage and Finance provided financing for the purchase. The retail installment contract

between CMH Homes and Perez contained an arbitration clause which provides:

All disputes, claims or controversies arising from or relating to this contract... shall be resolved by mandatory

binding arbitration by one arbitrator selected by Seller with Buyer's consent.

*447 On November 2, 2009, Perez sued CMH Homes, Inc., Vanderbilt Mortgage and Finance, Inc., and Bruce Robinson

Moore Jr. (hereinafter "CMH Homes") for fraud and violations ofthe Texas Debt Collection Act in the financing of his

manufactured home. Perez filed a motion to compel arbitration on January 13, 2010. Although the parties agreed that the

contract was governed by the Federal Arbitration Act and agreed to submit to arbitration, they could not agree to an

arbitrator. After two months of disagreement, with both parties suggesting arbitrators in various correspondence,Perez's

attorney declared an impasse.^1' On March 8, 2010, after ahearing, the trial court issued an order appointing Gilberto

Hinojosa as arbitrator. Although the order was titled "Orderon Plaintiffs Motion to CompelArbitration," the only directive

in the order was to name an arbitrator to preside over the dispute.

CMH Homes filed an interlocutory appeal pursuant to Texas Civil Practice and Remedies Code section 51.016, challenging

the court's appointmentof Gilberto Hinojosa as arbitrator. CMH Homes did not file a separate mandamus petition, but

asked the court of appeals to consider its appeal as a mandamus proceeding in the alternative. See CMHHomes, Inc. v.

Perez, 328 S.W.3d 592, 594 (Tex.App.-San Antonio 2010, pet. granted). The court of appeals determined that interlocutory

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appeal was unavailable under Civil Practice and Remedies Code section 51.016 and dismissed the case for want of

jurisdiction. Id. at 593.

B. Jurisdiction and Standard ofReview

This court has jurisdiction to determine whether the court of appeals correctly decided its jurisdiction. See Badiga v. Lopez,

274S.W.3d681, 682 n. 1 (Tex. 2009) (citing Tex. Dep't ofCrim. Justice v. Simons, 140 S.W.3d 338, 343 n. 13 (Tex.

2004)). We review the court of appeals' determination of its jurisdiction de novo. Villafani v. Trejo, 251 S.W.3d 466, 467

(Tex.2008).

Unless a statute authorizes an interlocutory appeal, appellate courts generally only have jurisdiction over final judgments.

See Lehmann v. Har-Con Corp., 39 S.W.3d 191. 195 (Tex.2001); see also JackB. Anglin Co., Inc. v. Tipps, 842 S.W.2d

266. 272 (Tex. 1992) ("Interlocutory orders may be appealed only if permitted by statute." (citations omitted)). We strictly

apply statutes granting interlocutory appeals because they are a narrow exception to the general rule that interlocutory

orders are not immediately appealable. See, e.g., Tex. A&M Univ. Sys. v. *448 Koseoglu, 233 S.W.3d 835, 841

(Tex.2007); Bally Total Fitness Corp. v. Jackson, 53S.W.3d352, 355 (Tex.2001) (citation omitted). •

II. Discussion

First, we must determine whether the court of appeals lacked jurisdiction under Texas Civil Practice and Remedies Code

section 51.016 of an interlocutory appeal of an order appointing an arbitrator. If section 51.016 does not provide

jurisdiction, we then decide whether the court of appeals should have considered CMH Homes's interlocutory appeal as a

petition for writ of mandamus.

A. Texas Civil Practice and Remedies Code Section 51.016

Prior to the Legislature's 2009 amendment to the Texas Arbitration Act (TAA), parties seeking to appeal an order refusing

to compel arbitration would commonly file two separate appellate proceedings. Under the TAA, a party could bring an

interlocutory appeal of an order denying arbitration. See TEX. CIV. PRAC. & REM. CODE § 171.098. Under the Federal

Arbitration Act (FAA), a party could only challenge an order denying arbitration by mandamus. JackB. Anglin, 842

S.W.2d at 271-72. As a result, parallel proceedings were the norm in Texas arbitration disputes where parties were unsure

which arbitration act applied. Although "unnecessarilyexpensive and cumbersome," such parallel proceedings were

required.Id. at 272. Twice, this Court requested that the Legislature "consider amending the Texas Act to permit

interlocutory appeals of orders issued pursuant to the Federal Act." Id.;In re D. Wilson Constr. Co., 196 S.W.3d774, 780

n. 4 (Tex.2006) (quotingJackB. Anglin, 842 S.W.2d at 272). In response, the Legislature added section 51.016 to the Civil

Practice and Remedies Code in 2009. Act of May 27, 2009, 81st Leg., R. S., ch. 820, §§ 1, 3, 2009 Tex. Gen. Laws 2061

(codified at TEX. CIV. PRAC. & REM.CODE § 51.016). This is our first opportunity to construe the scope of the

Legislature's remedial action.

Section 51.016 provides that a party may appeal a judgment or interlocutory order "under the same circumstances that an

appeal from a federal district court's order or decision would be permitted by 9 U.S.C. Section 16." TEX. CIV. PRAC. &

REM. CODE § 51.016. Section 16 of the FAA provides:

(a) An appeal may be taken from

(1) an order

(A) refusing a stay of any action under section 3 of this title,

(B) denying a petitionundersection4 of this title to order arbitration to proceed,

(C) denying an application under section 206 of this title to compel arbitration,

(D) confirmingor denying confirmation of an award or partial award, or

(E) modifying, correcting, or vacating an award;

(2) an interlocutory order granting, continuing,or modifyingan injunctionagainst an arbitration that is subject

to this title; or

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(3) a final decision with respect to an arbitration that is subject to this title.

(b) Except as otherwise provided in section 1292(b) of title 28, an appeal may not be taken from an

interlocutory order

(1) granting a stay of any action under section 3 of this title;

(2) directing arbitration to proceed under section 4 of this title;

*449 (3) compelling arbitration under section 206 of this title; or

(4) refusing to enjoin an arbitration that is subject to this title.

9 U.S.C. § 16. Civil Practice and Remedies Code section 51.016 expressly incorporates federal law. Thus, an interlocutory

appeal in this case is permitted only if it would be permitted under the same circumstances in federal court under section

16. See Littlev. Tex. Dep'tofCrim. Justice, 148 S.W.3d 374. 381-82 (Tex.2004) (examining federal law when interpreting

state statute that incorporated federal statute).

In considering the scope ofsection 16'sjurisdictional grant, we first determine the nature of the order being appealed. The

order at issue is entitled "Order on Plaintiffs Motion to Compel Arbitration" and appoints Gilberto Hinojosa as arbitrator.

Although Perez's motion to compel arbitration did not request that the trial court appoint an arbitrator, Perez submitted

letters to the court administrator declaring an impasse and requesting the trial judge appoint an arbitrator.

At first glance, this order may appear to fit within section 16(b)(2) as an order "directing arbitration to proceed." 9 U.S.C. §

16(b)(2). The "Order on Plaintiffs Motion to Compel Arbitration" was issued in response to Perez's motion requesting that

the trial court compel arbitration. But the substance ofthe order is the appointment of Gilberto Hinojosa as arbitrator. See

Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992) ("[I]t is the character and function of an order that

determine its classification."). While it may be argued that by appointing an arbitrator the order implicitly compels the

parties to arbitration, the order does not explicitly grant Perez's motion to compel and does not explicitly compel the parties

to arbitrate their dispute. There is no question that both parties agreed to arbitrate their dispute; the open question remaining

was who would serve as the arbitrator. The purpose of the order was to answer that question.

Section 5 of the FAA explicitly permits a trial court to appoint an arbitrator under certain circumstances. 9 U.S.C. § 5.

Where the parties have previously agreed to a method for selecting an arbitrator, the parties must follow that method. Id.

However, if the agreed upon method breaks down and there is a lapse in appointing an arbitrator, the parties may petition

the trial court to appoint an arbitrator. Id.

An order appointing an arbitrator under section 5 is neither listed in section 16(a) (where appeals may be taken) nor in

section 16(b) (where appeals may not be taken). 9 U.S.C. § 16(a), (b). Even though section 16 is silent on the matter, CMH

Homes argues that an appeal of an order appointing an arbitrator is "permitted by Section 16" because some federal circuit

cases may have entertained interlocutory appeals regarding appointment of arbitrators pursuant to section 5J 'However,

none of the cited cases mentions whether the appeal is interlocutory and all but one of the cited cases fails to specifically

discuss itsjurisdictional basis orcite section \6P'Nat'l Am. Ins. Co. v. Transamerica *450 Occidental Life Ins. Co., 328

F.3d 462 (8th Cir.2003) (affirming the district court's selection of an arbitrator pursuant to section 5); ACEquip Ltd. v. Am.

Eng'gCorp., 315 F.3d 151 (2d Cir.2003) (same); see also The Stop & ShopSupermarket Co.LLC v. UnitedFood &

Commercial Workers Union Local 342, 246 Fed.Appx. 7 (2d Cir.2007) (same). The one exception, Universal Reinsurance,

specifically establishes itsjurisdiction "pursuant to 9 U.S.C. § 16(a)(3), which authorizes review of "a final decision with

respect to an arbitration....'" Universal Reinsurance Corp. v. Allstate Ins. Co., 16F.3d 125, 126 (7th Cir.1994). Neither

CMH Homes nor Perez has suggested that this appeal was anything other than interlocutory. Because the trial court did not

enter a dismissal or otherwise dispose of all parties and claims, the order remains interlocutory and cannot be appealed

under section 16(a)(3).[4]5ee In re GulfExploration, LLC, 289 S.W.3d 836, 839 (Tex.2009) ("[TJhere can be an appeal if

the underlying case is dismissed." (citing GreenTreeFin. Corp.-Ala. v. Randolph, 531 U.S. 79, 86-87, 121 S.Ct. 513, 148

L.Ed.2d 373 (2000))). Although we presume a court always evaluates its jurisdiction before deciding a matter, these cases

do not indicate whether their jurisdictional basis was section 16, and if so, whether the basis was section 16(a)(3) for final

ordersJ51 The only federal circuit case that speaks directly tothe jurisdictional issue isO.P.C. Farms Inc. v. Conopco Inc.,

which held that under section 16, the trial court's order appointing an arbitrator was not a final decision and was thus

unappealable.161 154 F.3d 1047, 1048-49 (9th Cir. *451 1998). The court explained: "[T]he only basis for an appeal... that

could even be plausibly argued is § 16(a)(3). It is, however, clear that the appointment of the third arbitrator is not the final

decision in this case.... Consequently § 16 effectively deprives us of jurisdiction." Id.

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The appellate jurisdiction of Texas courts in this case is based on federal law. The court of appeals had jurisdiction to

considerthe trial court'sorderif "appeal... wouldbe permitted by 9 U.S.C. Section 16" in federal court. TEX. CIV. PRAC.

& REM.CODE § 51.016. Because there is no apparent federal approach to judicial review under section 16 of orders

appointing arbitrators, we will not extrapolate jurisdiction from a dearth offederal authority to allow an interlocutory

appeal where the law is unclear and section 16 suggests otherwise.

Before the enactment of section 51.016, we specifically invited the Legislature '" [i]n the interests of promoting the policy

considerations of rigorous and expedited enforcement of arbitration agreements,... to consider amending the Texas Act to

permit interlocutory appeals of orders issued pursuant to the Federal Act.'" See In re D. Wilson, 196 S.W.3d at 780 n. 4

(quoting JackB. Anglin, 842 S.W.2d at 272). While we agree the Legislature added section 51.016 to prevent unnecessary

parallel proceedings, this inconsistency generally arose when parties were unsure whether the TAA or the FAA applied to

their agreement. See JackB. Anglin, 842 S.W.2d at 272 ("[L]itigants who allege entitlement to arbitration under the Federal

Act, and in the alternative, underthe TexasAct, are burdened with the need to pursueparallelproceedingsan interlocutory

appeal of the trial court's denial under the Texas Act, and a writ of mandamus from the denial under the Federal Act."). The

Legislature in enacting section 51.016 has remedied this particular situation and enacted a policy change that promotes

efficiency and common sense. See SidleyAustin Brown & Wood, LLPv. J.A. GreenDev. Corp., 327 S.W.3d 859, 862

(Tex.App.-Dallas 2010, no pet); Ranchers & Farmers Mut. Ins. Co. v. Stahlecker, No. 09-10-00286-CV, 2010 WL

4354020, at *1 (Tex. App.-Beaumont Nov. 4, 2010, no pet.) (mem.op.); In re Rio GrandeXarin II, Ltd., Nos. 13-10-00115-

CV, 13-10-00116-CV, 2010 WL 2697145, at *3-4 (Tex.App.-Corpus Christi-Edinburg July 6, 2010, pet. dism'd)

(mem.op.); 950 Corbindale, L.P. v. Kotts CapitalHoldingsLtd. P'ship, 316 S.W.3d 191, 195 n. 1 (Tex.App.-Houston [14th

Dist.] 2010, no pet.).

Here, however, the issue is not which Act applies, but whether this particular type of order is appealable. Just as all

interlocutory arbitration orders are not subject to appeal under the TAA, the Legislature in enacting section 51.016 did not

intend tomake all interlocutory orders under the FAA appealable, only those permitted by section 16 ofthe FAA.^1 Our

interpretation does not promote parallel proceedings of arbitration orders under the TAA and FAA and does not frustrate

*452 the Legislature's intent in enacting section 51.016.

The court of appeals below correctly determined it was without jurisdiction to hear an interlocutory appeal pursuant to

section 51.016. The only remaining appellate option for the parties at this juncture is mandamus relief.

B. Mandamus

Because Civil Practice and Remedies Code section 51.016 does not allow an interlocutory appeal of this type of order,

CMH Homes requests in the alternative that we instruct the court of appeals to treat CMH Homes's appeal as a petition for

writ of mandamus to prevent form from overriding substance.

Before the adoption of section 51.016, this Court held in In re Louisiana Pacific Corp. that a trial court's order appointing

an arbitrator could be reviewed by mandamus. 972 S.W.2d63, 64 (Tex. 1998) (per curiam). The arbitration agreement in

LouisianaPacific allowed each party to select an arbitrator. Id. at 63. After Louisiana Pacific withdrew its arbitrator due to

the objection of the other party, the trial court improperly appointed an arbitrator pursuant to section 5 of the FAA. Id. at

64. We conditionally issued the writ "[bjecause the terms of the contract and the FAA allow[ed] Louisiana Pacific to

choose an arbitrator" before the trial court intervened to name a replacement. Id. We explained the importance of

contractual arbitrator selection: "Since its inception, one of the central purposes of the FAA has been to allow the parties to

select their own arbitration panel if they choose to do so. ' Toward this end, it is desirable that the arbitration panel consist

of arbitrators chosen by each of the parties.'" Id. at 65 (quoting Lobo & Co. v. PlymouthNavigation Co., 187F.Supp. 859,

860 (S.D.N. Y. I960)).

Although this court decided Louisiana Pacific when FAA interlocutory orders could only be reviewed by mandamus, the

Legislature'sadditionof section 51.016 is of no effect here. As explainedabove, section 51.016 does not provide for

interlocutory appeal of an order appointing an arbitrator. There is still no remedy by appeal because the FAA does not

providefor the review of this type of order in state court. See id. at 65 ("LouisianaPacific has no adequateremedy by

appeal because the FAA does not providefor review of the trial court's actions in state court.").Moreover, "[mjandamus is

proper to correct a clear abuse of discretionwhen there is no adequateremedy 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 alternativeto

traditional litigation would be defeated").

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Perez argues mandamus review is inappropriate because CMH Homes failed to file a separate mandamus petition and,

citing JackB. 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 ofCo-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 *453 appellate court jurisdiction." (internal quotations and citations omitted)); see also Linwoodv. 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."); GrandPrairie Indep. Sch. Dist. v. S. Parts Imps., 813

S.W.2d499. 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 appellantan opportunity to amend or refile the

instrument required by law or our Rules to perfect the appeal").

Texas policy as ""embodied in our appellate rules ... disfavors disposing of appeals based upon harmless procedural

defects.'" Higgins v. RandallCnty. Sherifs Office, 257 S.W.3d 684, 688 (Tex.2008) (quoting Verburgtv. Dorner, 959

S.W.2d 615, 616 (Tex.1997)); see also TEXR.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 y. 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 ValeroEnergy 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'lProfit Assocs., Inc., 21A S.W.3d672,676 (Tex. 2009) (citations omitted). An appeal

complying withthe rules governing an accelerated appeal wouldgenerally 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 dayy'JackB. Anglin, 842 S.W.2d at 272.

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").

*454 Because CMH Homes specifically requested mandamus relief in the court of appeals and preserved that issue in this

Court, and because judicial efficiency militates against requiring CMH Homes to file a separate original proceeding, we

instruct the court of appeals to consider this appeal as a petition for writ of mandamus. Today, we speak only to the

propriety of mandamus review and not to the propriety of mandamus reliefin this particular case. Because the merits were

not briefed to this Court, we do not decide whether the trial judge improperly appointed an arbitrator.

III. Conclusion

We hold that Texas Civil Practice and Remedies Code section 51.016 does not permit interlocutory appeal from an order

appointing an arbitrator. However, this appeal may properly be considered as a petition for writ of mandamus, as CMH

Homesrequested. The court of appealserred in dismissingCMH Homes's appealfor lack ofjurisdiction. Accordingly, we

reverse and remand to the court of appeals for further proceedings consistent with this opinion.

NOTES

[1] After receivingPerez's motion to compel arbitration, CMH Homes presented three namesfor consideration as potential

arbitrators. Perez rejected the suggested arbitrators and presented CMHHomeswith a proposed agreed orderthat

compelledthe parties to arbitrationand left a blank for the court to appointan arbitrator. CMH Homes did not agree to the

proposedorder and offeredto submit two more arbitrator namesfor Perez'sconsideration. Instead, Perez sent a copyof the

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proposed order to the court and suggested three possible arbitrators for the court to appoint. In response, CMH Homes sent

a letter to the court explaining that under the arbitration provision, CMH Homes, not Perez, has the right to designate the

arbitrator and suggested two more arbitrators. The letter also indicates that the parties were considering one ofthe two

arbitrators, Donato Ramos, but Perez was concerned about conflicts of interests because his attorneys had financial

connections to Ramos. The court held a hearing on February 9, 2010 where the parties appeared to agree to the appointment

ofRamos. However, when the parties could not agree to a waiver of conflicts for Ramos, the agreement fell apart. Perez

notified the court that they could not reach an agreed waiver and again asked the court to appoint an arbitrator and re

submitted the three names previously suggested, including Gilberto Hinojosa.

[2] CMH Homes relies upon the following cases: Nat'lAm.Ins. Co. v. Transamerica Occidental Life Ins. Co., 328 F.3d 462

(8th Cir. 2003); ACEquip Ltd. v. Am. Eng'g Corp., 315F.3d 151 (2d Cir.2003); UniversalReinsuranceCorp. v. Allstate

Ins. Co., 16F.3dl25 (7th Cir.1994); ATSA ofCal, Inc. v. Cont'lIns. Co., 754 F.2d 1394 (9th Cir. 1985).

[3] CMH Homes also cites the Ninth Circuit case ATSA ofCalifornia, Inc. v. ContinentalInsuranceCo., 754 F.2d 1394

(9th Cir. 1985). But because this case was decided before section 16 was enacted, it does not interpret section 16.

[4] In state court, cases are typically stayed pending arbitration rather than dismissed, as frequently is the case in federal

court. In In re GulfExploration, LLC, we explained:

Arbitrability is often the only issue in federal court because nondiverse parties may prevent removal of the underlying case

from state court; in such cases, even a stay order will be considered final if the federal action is effectively over. But in the

state courts, disputes about arbitrability and the merits must usually proceed in a single court under rules of dominant

jurisdiction.

Accordingly, a stay is generally the only appropriate order for a state court with jurisdiction of all issues. Indeed, the Texas

Arbitration Act states that "[a]n order compelling arbitration must include a stay" ofthe underlying litigation. During

arbitration, a court order may be needed to replace an arbitrator, compel attendance of witnesses, or direct arbitrators to

proceed promptly; after arbitration, a court order is needed to confirm, modify, or vacate the arbitration award.

Consequently, dismissal would usually be inappropriatebecause the trial court cannot dispose of all claims and all parties

until arbitration is completed.

289 S.W.3d 836, 840-41 (Tex.2009) (citations omitted).

[5] The appellants in NationalAmerican and ACEquip represented to the circuit courts that the order being appealed was

final. See Appellant'sBrief at 3,ACEquip Ltd. v. Am. Eng'gCorp., 315F.3d 151 (2d Cir.2003);Appellant'sBrief at 1, Nat'l

Am. Ins. Co. v. Transamerica Occidental LifeIns. Co., 328F.3d462 (8th Cir.2003). The appellees did not challenge this

assertioninACEquip, see Brief of Plaintiff-Appellee, ACEquip Ltd. v. Am. Eng'g Corp., 315F.3d 151 (2d Cir.2003), and

appearnot to have challenged the assertion in National American, see Reply Brief of Appellant, Nat'l Am. Ins. Co. v.

Transamerica Occidental Life Ins. Co., 328F.3d 462 (8thCir.2003). In both cases,the partiestreatedthe order appointing

an arbitrator as final, and the courts of appeals appear to have taken the parties at their word.

[6] In its analysis, the court in O.P.C. Farms concluded that an order appointing an arbitrator is "embedded" in the case.

O.P.C. FarmsInc. v. ConopcoInc., 154 F.3d 1047, 1049 (9th Cir. 1998) (citation omitted). However, the United States

Supreme Courteliminated the distinction betweenembedded and independent proceedings in Green Tree, whichmayraise

questions aboutthe precedential valueof this case. SeeGreen Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 87-89,121

S.Ct. 513, 148L.Ed.2d 373 (2000).

[7] The language of section51.016, andtherefore FAA section 16, also indicates the Legislature did not intendto createa

comprehensive appellate scheme makingall FAA orders appealable through interlocutory appeal, but insteadfocused on

denials of arbitration. See TEX. CIV. PRAC. & REM.CODE § 51.016; 9 U.S.C. § 16; In re GulfExploration, 289 S.W.3d

at 839 ("[T]he FAA 'generally permits immediate appeal of orders hostile to arbitration ... butbarsappeal ofinterlocutory

ordersfavorable to arbitration.'" (quoting Green Tree, 531 U.S. at 86, 121 S.Ct. 513)); see alsoMay v. Higbee Co., 372

F.3d 757,762 (5thCir.2004) (noting the "general, congressionally mandated rule that anti-arbitration decisions are

immediately appealable under § 16(a)(1)").

[8] Although wenote that CMH Homes's petition was notcertified atthis Court asrequired byTexas Rule ofAppellate

Procedure 52.3(j), we areconfident thatCMH Homes willfully comply with Rule 52onremand to thecourt of appeals.

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https://www.courtlistener.com/opinion/895326/cmh-homes-v-perez/? 11/24/2015
APPEAL No. 14-14-00410-CV

DOV AVNI KAMINETZKY a/k/a DOV K. AVNI )(

Appellant )(

v. )(

DOSOHS I, LTD, )(

Appellee )(

[APPEAL of 5-15-14 FROM #1997-40590/11 JDC;HARRIS COUNTY.TX

EXHIBIT No.

"/6"

TO APPELLANT'S ORIGINAL MOTION [of 11-25-15 ]TO RECALL

THE "MANDATE"- ALLEGEDLY ISSUED 11-6-2015 BY THE

CLERK OF THIS 14th COURT-AFTER ITS DEPUTY WARD TAMPERED

WITH CASE RECORD, FABRICATED 14COA PANEL'S ORDERS AND

DEFRAUDED MOVANT, OR TREAT IT AS ORIGINAL PROCEEDINGTO BE DECIDED, IF NEEDED-BY MANDAMUS to TX SUPREME COURT
in Re D & KW Family, L.P., - CourtListener.com Page 2 of 11

L A g* B O Y

FRIDAY

i \ Now Through 1 }Monday; |/Nov. 30th! : ree Law Proiect a federally-recognized 501(c)(3) non-profit. We rely heavily on donations for our

ads, we ask for a $10 donation each year.

(did

Col

Filed: August 9th, 2012

Status: Precedential

Docket Number: 01-11-00276-CV

Fingerprint: 56fedba9ca5516198cb Ib2d3b 1aaa720dfbb2db8

ily, L.P., 01-11-00276-CV (Tex. App. 2012)

e a favorite.

Opinion issued August 9, 2012

In The

Court of Appeals

For The

First District of Texas

NO. 01-11-00276-CV

IN RE D S KW FAMILY, L.P., Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator D & KW Family, L.P. intervened in the underlying case several

years after a final judgment had issued in order to file a motion to enter judgment

nunc pro tunc* After the trial court denied the motion, D s KW filed a notice of

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in Re D & KW Family, L.P., - CourtListener.com Page 3 of 11

appeal. Kimberly Kay Bidinger, also an intervenor in the underlying case, moved

+

The underlying case is Aldine Independent School District v. Ranch Town,

Inc., No. 94-08239 in the 151st District Court of Harris County, Texas, the

Honorable Mike Engelhart, presiding,

to dismiss D S KW's appeal for want of jurisdiction. In its response to the motion

to dismiss, D & KW specifically requests that this court treat its appeal as a

mandamus petition, and it filed with that response a document styled as a petition

for writ of mandamus.

We conclude that D & KW has invoked this court's original jurisdiction and

we treat the appeal as a petition for writ of mandamus. Accordingly, Bidinger's

motion to dismiss is denied. On the merits, we deny D & KW's petition for writ of

mandamus.

Background

In January 1994, Aldine Independent School District ("AISD") sued Ranch

Town, Inc., for unpaid property taxes on several lots in a residential subdivision.

Harris County intervened in the suit and adopted AISD's petition.

In October of the same year, a master in chancery appointed to the case filed

a report in which it recommended that judgment be granted in the case. The report

does not reflect the substance of the master's recommendation. In November,

Ranch Town, AISD, and Harris County entered into an agreed judgment that was

signed by the trial court. The agreed judgment ordered Ranch Town to pay

$26,434.45 to AISD and $18,041.10 to Harris County, plus the taxing authorities'

attorney's fees and court costs. It also specified that if Ranch Town defaulted on

its payment obligations, the court would issue an order directing the Harris County

2

Sheriff or Constable to seize and sell the property. The agreed judgment described

the property and rights of way thereon as follows:

LOTS ONE HUNDRED THIRTY-NINE (139) THROUGH ONE

HUNDRED FORTY-TWO, (142), BLOCK NINE (9), ALDINE

MOBILEHOME CITY, AN UNRECORDED SUBDIVISION IN

HARRIS COUNTY, TEXAS, OUT OF THE EAST FIFTY (50)

ACRES, MORE OR LESS, AND ALL RIGHTS OF WAYS WITHIN

SUCH FIFTY (50) ACRES, IN THE JOSEPH MCGINNIS

SURVEY, ABSTRACT 587, SAVE AND EXCEPT THAT PART OF

THE FIFTY (50) ACRES CONVEYED TO THE STATE OF

TEXAS, AND BEING MORE PARTICULARLY DESCRIBED BY

METES AND BOUNDS IN ATTACHED EXHIBIT "A" AND

SAVE AND EXCEPT THOSE PROPERTIES PREVIOUSLY

CONVEYED AND DESCRIBED IN DEEDS RECORDED AS

FILM CODE NUMBERS XXX-XX-XXXX, XXX-XX-XXXX, XXX-XX-XXXX,

XXX-XX-XXXX, XXX-XX-XXXX, XXX-XX-XXXX, AND XXX-XX-XXXX, IN

THE DEED RECORDS OF HARRIS COUNTY, TEXAS, SAID

LOTS BEING SHOWN FOR REFERENCE PURPOSES ONLY ON

THE PLAT ATTACHED AS EXHIBIT "B".

(Emphasis supplied.) Exhibit A, as referenced in the agreed judgment, is a metes

and bounds description of the property; however, it does not describe the rights of

way on the property. Exhibit B is a plat showing the lots within the subdivision

and several rights of way, including a street labeled "Cherilynn Lane."

When Ranch Town did not pay the agreed judgment, the trial court ordered

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that the property be sold. AISD purchased the property at the foreclosure sale.

D S KW subsequently purchased the property at a constable's sale. Aside from

the absence of any reference to a plat, the constable's deed described the property

conveyed to D S KW exactly as it was described in the 1994 agreed judgment, and

3

it included as an attached exhibit the metes and bounds description of the property,

but not the rights of way.

In a separate case, D s KW brought trespass claims against Bidinger and

her husband, Alfredo Arturo Ballestas, who together owned an adjacent property

accessible by "Cherilyn Lane." See D s KW Family, L.P. v. Bidinger, No. 01-08-

00260-CV,

2009 WL 1635216

, at *3 (Tex. App.—Houston [1st Dist.] June 11,

2009, pet. denied) (mem. op.) ("D & KW I"). D s KW claimed to own rights of

way encompassing Cherilyn Lane, and it sought an injunction preventing Bidinger

and Ballestas from accessing their property by way of that road. See id. Bidinger

and Ballestas counterclaimed for an implied easement and easement by necessity.

See id. The trial court in that case resolved cross-motions for summary judgment

in favor of Bidinger and Ballestas, and D s KW appealed to this court. Id.

A key issue in that appeal was whether D s KW had acquired good and

perfect title to the Cherilyn Lane right of way. Id. at *7. In analyzing the

description of the rights of way in D S KW's deed, this court stated the following:

The grant of "all rights of way" within the 50-acre tract is

legally insufficient to confer fee simple title to Cherilyn Lane for

several reasons. Within the deed itself, there is a purported grant of

all rights-of-way, but the metes and bounds description attached to the

deed does not refer to any right-of-way. The written instrument that

purports to convey title does not, therefore, furnish within itself, or by

reference to some other existing writing, the means or data by which

the land conveyed may be identified with reasonable certainty. The

conveyance of "all rights of way" fails because of a lack of metes and

bounds description or any other existing writing from which to

4

determine the location, size, and boundaries of the rights of way with

the requisite reasonable certainty.

Further, the language of conveyance of "all rights of way" by

the constable's deed in this case is much like a conveyance of an

unidentified portion of a larger, identifiable tract, which the Supreme

Court of Texas has long held to be insufficient.

Finally, the constable's deed does not provide any means by

which a surveyor could locate and determine the rights-of-way.

Indeed, Bidinger's and Ballestas's summary-judgment evidence

includes the affidavit of a professional surveyor who attested to his

inability to rely on the descriptions provided by the constable's deed

and supporting exhibit to aid in determining the property conveyed.

D & KW responded by providing the affidavit of another professional

surveyor who stated that he was able to determine the metes and

bounds of the Cherilyn Lane right-of-way by referring to the tax plats

in the Assessor's Block Book for Harris County. To be competent,

evidence relied on to locate, size, and determine boundaries must refer

to existing writings such as tax tract maps. The critical distinction

here is the lack of an existing writing that refers to the tax plat. In this

case, there is only the opinion of D & KW's professional surveyor

that refers to the tax plat.

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Id. at *9 (emphasis, footnote, quotation marks, and citations omitted). This court

affirmed the summary judgment in favor of Bidinger and Ballestas. Id. at *10.

Following disposition of that appeal, AISD filed a motion for entry of a final

judgment nunc pro tunc in the 1994 tax delinquency suit. AISD's proposed

judgment nunc pro tunc would have more particularly described the metes and

bounds of the rights of way over the property that AISD foreclosed upon and

subsequently conveyed to D s KW.

Bidinger intervened to oppose the request for judgment nunc pro tunc.

D S KW also intervened, and it joined and adopted AISD's motion. AISD

subsequently withdrew its motion, thereby leaving only D s KW to prosecute it.

A tax master filed a report recommending that the motion for entry of judgment

nunc pro tunc be denied. See TEX. TAX CODE ANN. § 33.71 (West 2008)

(authorizing appointments of tax masters in tax delinquency suits).

D & KW appealed the tax master's recommendation to the district court.

See TEX. TAX CODE ANN. § 33.74 (authorizing appeals from tax master's

recommendation to referring court). Following a hearing, the trial court signed an

order denying D & KW's motion for entry of judgment nunc pro tunc. D s KW

filed notice of appeal from that order.

Analysis

I. Jurisdiction

In its original brief, D s KW styled its application to this court as an appeal

of the trial court's order denying entry of judgment nunc pro tunc. Bidinger filed a

motion to dismiss the appeal for want of jurisdiction, contending that this court

lacks appellate jurisdiction over such an order. See TEX. R. APP. P. 42.3. Without

disputing this point, D s KW responded by asking that we treat its application as a

petition for writ of mandamus, and it also filed with its response a document styled

as such.

6

Appellate courts generally have jurisdiction only over final judgments,

although a statute can authorize appeals from specific types of orders. CMH

Homes v. Perez,

340 S.W.3d 444

, 447 (Tex. 2011); see also, e.g., TEX. CIV. PRAC.

& REM. CODE ANN. § 51.014 (West Supp. 2011) (authorizing appeals from certain

interlocutory orders). An order denying a motion for entry of judgment nunc pro

tunc is not an appealable, final judgment. Shadowbrook Apartments v. AbuAhmad,

783S.W.2d210

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, 211 (Tex. 1990) (per curiam). Nor does any statute

authorize an appeal from such an order. See, e.g., TEX. CIV. PRAC. s REM. CODE

ANN. § 51.014. Therefore, appellate courts must ordinarily dismiss for want of

jurisdiction appeals that challenge an order denying judgment nunc pro tunc. See,

e.g., Shadowbrook Apartments, 783 S.W.2d at 211; Gonzalez v. Dep't of Family &

Protective Servs., No. 01-11-00205-CV,

2012 WL 1564664

, at *3 (Tex. App.-

Houston [1st Dist.] May 3, 2012, no pet.) (mem. op.). Because D S KW appeals

an order denying judgment nunc pro tunc and such an order is not appealable, we

hold that this court lacks jurisdiction to consider the appeal as a direct appeal. See

Shadowbrook Apartments, 783 S.W.2d at 211.

Nevertheless, in an appropriate case, we may treat an appeal as a petition for

writ of mandamus. See CMH Homes, 340 S.W.3d at 452-53. An appellant who

specifically requests that its appeal be treated as a mandamus petition invokes this

court's original jurisdiction. Id.; see also TEX. GOV'T CODE ANN. § 22.221(b)

7

(West 2004) (authorizing courts of appeals to issue writs of mandamus). In CMH

Homes v. Perez,

340 S.W.3d 444

(Tex. 2011), the Supreme Court of Texas held

that an appellant who filed an appeal from an unappealable order was nevertheless

entitled to have its appeal treated as a petition for writ of mandamus because the

appellant specifically requested mandamus relief and because requiring the

appellant to file a separate document entitled "petition for writ of mandamus"

would "unnecessarily waste the parties' time and further judicial resources." CMH

Homes, 340 S.W.3d at 453-54.

Likewise, in this case, requiring D S KW to initiate a separate mandamus

proceeding would unnecessarily waste the parties' time and further judicial

resources. D s-KW not only specifically requested mandamus relief, it also

submitted a document in the form of a petition for writ of mandamus. Moreover,

the necessary trial record has already been filed with this court and the parties have

briefed the merits of the case. Because the order appealed from is unappealable,

D & KW has specifically requested mandamus relief, and treating this appeal as a

petition for writ of mandamus advances the interest of judicial efficiency, we will

consider this appeal as a petition for writ of mandamus. See id.; see also In re

Bridges,

28 S.W.3d 191

, 195-96 (Tex. App.-Fort Worth 2000, orig. proceeding)

(holding that mandamus relief was available and appropriate when trial court

erroneously denied motion for entry of order nunc pro tunc), cited with approval in

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In re Daredia,

317S.W.3d247

, 249-50 (Tex. 2010) (per curiam, orig.

proceeding). We deny Bidinger's motion to dismiss for want of jurisdiction.

II. Mandamus

Mandamus relief is available if the relator establishes a clear abuse of

discretion for which there is no adequate remedy by appeal. In re Prudential Ins.

Co. of Am.,

148 S.W.3d 124

, 135-36 (Tex. 2004) (orig. proceeding). A trial court

has no discretion in determining what the law is or applying the law to the facts.

Walker v. Packer,

827 S.W.2d 833

, 840 (Tex. 1992) (orig. proceeding). If the trial

court fails to analyze or apply the law correctly, the trial court abuses its discretion.

Id. With respect to the resolution of factual issues, however, the reviewing court

may not substitute its judgment for that of the trial court. Id. at 839. The relator

must establish that the trial court could have reasonably reached only one

conclusion. Id. at 840. As previously discussed, D S KW does not have recourse

to an appeal to challenge the trial court's denial of its motion. Consequently, the

only remaining question is whether D & KW has established that the trial court has

clearly abused its discretion. See Prudential, 148 S.W.3d at 135-36.

D & KW argues that the trial court clearly abused its discretion in refusing

to render a judgment nunc pro tunc because it was a clerical error, rather than a

judicial one, to have omitted in the 1994 agreed judgment a description of the

metes and bounds of the rights of way over its property. D s KW contends that

9

when the agreed judgment described the foreclosed property to include "ALL

RIGHTS OF WAYS WITHIN SUCH FIFTY (50) ACRES," the trial court did not

intend to render a judgment reflecting a legally insufficient description of the rights

of way. It asserts that the metes and bounds description is readily determined by

reference to the tax plat filed in the Harris County Assessor's block book and that

adding the pertinent description involves no judicial reasoning.

Bidinger points out that the judgment at issue is an agreed judgment. She

contends that the judgment was drafted by one of the parties' attorneys and argues

that the error alleged by D & KW became part of the court's judgment as rendered,

thereby making it a judicial error. Bidinger also contends that entering the

judgment nunc pro tunc would require the trial court to exercise its judicial

reasoning to determine whether AISD intended to sue for all rights of way or only

certain rights of way. Furthermore, Bidinger argues that in D s KW I, this court

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specifically rejected the possibility of using the tax plat to supply the metes and

bounds of the rights of way.

Absent a motion that extends the trial court's plenary power, the trial court

has plenary power to modify its final judgment or order within 30 days of signing

it, and the court loses jurisdiction to modify its judgment after the 30 days has run.

TEX. R. CIV. P. 32 9b(d); Martin v. Tex. Dep't of Family & Protective Servs.,

176S.W.3d390

, 392 (Tex. App.—Houston [1st Dist.] 2004, no pet.). An exception to

10

this general rule is that the trial court can correct clerical errors by judgment nunc

pro tunc even after it loses plenary power. Escobar v. Escobar,

711S.W.2d230

231 (Tex. 1986) . The judgment nunc pro tunc may be entered at any time for this

purpose. TEX. R. CIV. P. 316 S 329b(f); Barton v. Gillespie,

178 S.W.3d 121

, 126

(Tex. App.—Houston [1st Dist.] 2005, no pet.). "A clerical error is a discrepancy

between the entry of a judgment in the record and the judgment that was actually

rendered." Barton, 178 S.W.3d at 126. Rendition occurs when the trial court's

decision is officially announced either by a signed memorandum filed with the

clerk of the court or orally in open court. Id.

Unlike with clerical errors, the trial court cannot correct a judicial error after

the expiration of plenary power by entering a judgment nunc pro tunc. Escobar,

711 S.W.2d at 231-32. A judicial error is one that arises from a mistake of law or

fact that requires judicial reasoning to correct, and it occurs in the rendering, rather

than the entering, of the judgment. Barton, 178 S.W.3d at 126. "Thus, even if the

court renders incorrectly, it cannot alter a written judgment which precisely reflects

the incorrect rendition." Escobar, 711 S.W.2d at 232. Stated another way, "if the

judgment entered is the same as the judgment rendered, regardless of whether the

rendition was incorrect, a trial court has no nunc pro tunc power to correct or

modify the entered judgment after its plenary jurisdiction expires." Hernandez v.

Lopez,

288 S.W.3d 180

, 187 (Tex. App.-Houston [1st Dist.) 2009, no pet.) (op.

11

on rehearing). "A judgment rendered to correct a judicial error after plenary power

has expired is void." Id. at 185 (citing Dikeman v. Snell,

490 S.W.2d 183

, 186

(Tex. 1973)).

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Whether an error in a judgment is clerical or judicial is a question of law.

Escobar, 711 S.W.2d at 232. In order to make a nunc pro tunc correction or

modification of a judgment, the evidence must be clear and convincing that a

clerical error was made, that is, that the entered judgment differs from the

judgment actually rendered. See Barton, 178 S.W.3d at 127; see also America's

Favorite Chicken v. Galvan,

897 S.W.2d 874

, 877 (Tex. App.-San Antonio 1995,

writ denied) ("In order to issue a judgment nunc pro tunc, there must be some

evidence that the judgment the trial judge actually rendered is not correctly

represented in the judgment she signed and entered of record."). Evidence of the

judgment actually rendered may derive from oral testimony of witnesses, written

documents, previous judgments, docket entries, or the trial judge's personal

recollection. Barton, 178 S.W.3d at 127.

When someone other than the trial court prepares a proposed written order

or judgment that reflects a mistake, and the trial court, without having already

rendered judgment, signs the proposed order or judgment, the mistake becomes

part of the court's judgment as actually rendered and it is therefore a judicial error

rather than a clerical error. See, e.g., Daredia, 317 S.W.3d at 250. The foregoing

12

rule is illustrated by Hernandez v. Lopez,

288 S.W.3d 180

(Tex. App.—Houston

[1st Dist.] 2009, no pet.). In that case, a child-support enforcement hearing was

held before a master. Hernandez, 288 S.W.3d at 182. The mother, the father, and

the Office of the Attorney General of Texas signed an agreed order reflecting a

mistake, specifically, a finding that the father was in arrears in the amount of

$51,000.00 as of December 31, 2004, a date eleven months in the future from the

time when the agreed order was signed. Id. The trial court then signed the agreed

order. Id. There was no record of any hearing at the time the trial court signed it.

Id.

Two years later, the Office of the Attorney General moved for judgment

nunc pro tunc, alleging that the date reflected in the agreed order should have read

December 31, 2003. Id. at 182-83. The trial court granted the motion and entered

judgment nunc pro tunc. Id. at 183. On appeal, this court stated:

The terms of the Agreed Order were set forth by the parties, and the

Agreed Order states that the master submitted "the proposed" Agreed

Order to the trial court and recommended its approval. On

January 27, 2004, when the trial court signed the Agreed Order

adopting the master's recommendation as the order of the court,

rendition of the judgment occurred. The error at issue herein, if any,

occurred in the rendering of the judgment.

Id. at 185-86 (emphasis, footnote, and citations omitted). Finding no evidence in

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the record that the trial court actually rendered judgment before signing the agreed

order, this court vacated the judgment nunc pro tunc. Id. at 187-88.

13

This case is similar to Hernandez. AISD's petition described the rights of

way on the property as "ALL RIGHTS OF WAYS WITHIN SUCH FIFTY (50)

ACRES," without greater detail. The master's report recommended that

"judgment" should be granted in the case, without specifying what that judgment

should be. The trial court signed an agreed proposed judgment, describing the

rights of way only as "ALL RIGHTS OF WAYS WITHIN SUCH FIFTY (50)

ACRES." Counsel for all parties signed the agreed judgment beneath the words

"agreed as to substance and form."

There is no indication in the record that the trial court actually rendered,

orally or otherwise, a judgment different from the one it signed and entered.

Accordingly, we hold that the evidence is not clear and convincing that the

judgment reflects a clerical error. See Barton, 178 S.W.3d at 127; cf. Hernandez,

288 S.W.3d at 187 ("[T]here is no evidence in the record that the trial court

intended to do anything other than grant the motion exactly as the parties

requested, and there is no evidence in the record before us with regard to any prior

rendition of judgment."). The fact that the agreed judgment fails to more

particularly describe the metes and bounds of the rights of way does not, by itself,

suffice to show that the alleged error is clerical rather than judicial. Cf. Hernandez,

288 S.W.3d at 187 ("[I]t is of no consequence which date [the mother] may have

intended in the Agreed Order that she signed or whether this Court can agree that

14

the date that [the mother] now asserts is, as a matter of logic, the date everyone . . .

must have intended.").

Conclusion

Having failed to present clear and convincing evidence that the alleged error

in the agreed judgment was clerical rather than judicial, D & KW has not

demonstrated that the trial court clearly abused its discretion in denying its motion

for entry of judgment nunc pro tunc. Accordingly, we deny the petition for writ of

mandamus.

Michael Massengale

Justice

Panel consists of Justices Bland, Massengale, and Brown.

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Cited By (1)

This opinion has been cited by these opinions:

• Dianna Jones v. Currie A. McRee. IV and Ed Baranowski,...

Full List ofCitations©

Authorities (12)

This opinion cites:

• America's Favorite Chicken Co. v. Galvan. 897 S.W.2d 874 (Tex. App. 1995)

• Barton v. Gillespie. 178 S.W.3d 121 (Tex. App. 2005)

• CMH HOMES v. Perez. 340 S.W.3d 444 (Tex. 2011)

• Dikeman v. Snell. 490 S.W.2d 183 (Tex. 1973)

• Escobar v. Escobar. 711 S.W.2d 230 (Tex. 1986)

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