# APPEAL No. 14-14-00410-CV r~—————— r TIT• [HflWIIW Mil I—TT—~—-T*TTTf 

### FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 

# NOV 30 2015 DOVAVNI KAMINETZKY a/k/aDOV K. AVNI )( Christopher a. prine 

# Appellant )( L CLERK v. )( 

# DOSOHS I, LTD, Appellee )( [APPEAL of5-15-14 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 RECORDSAND 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 OFAPPEALS OF TEXAS. 

# APPELLANT DOV K. AVNI a/k/a DOVAVNI KAMINETZKY ["Dov"] respectfully prays forthe 

# taking ofjudicial notice by the members ofthis "B-3" panel who were not privy to the tamperings in therecord ofthis appeal by deputy ClerkTroy 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.Busbyand Brown -who unanimously decided on August 27,2015 

# to dismiss this appeal-acting in total reliance onfraudulent representationsofDeputy ChiefClerkTROY D. WARD ["WARD"] who knowingly and willfully omitted from therecord of 

# this caseimportant items priorto 8-26-15 rushed setting ofdismissal hearing onnext morning without notice to Dov-to takejudicial notice of Ward'sunlawful acts,thenrecall 11-6-15 mandate I. DEPUTY WARD'S UNLAWFULACTS PROVEN BELOW MATERIALLY ALTERED THE RECORD ADVERSLYTO DOV 

# (1) omission/deletion of124 page supplemental clerk record of5-13-15(!) (2) paying no attention and notreferencing any of the other supplemental 

# Clerk Records ordered andpaid byDov.Appellee ordered norecord (!) (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 recordwith 325 pages missing. Movant attaches andincorporates hereappendix with case records.relevantappellate rules andauthorities andwill supplement them byMonday, 11-30 as Court reopensafter holiday

### INDEXOF EXHIBITS FROM RECORDS OF APPEAL #14-14-00410-CV PROVING MOVANT'S ALLEGATIONS OF •CLERK'S UNLAWFUL ACTS TO DISMISS APPEAL BYFRAUDS, and APPELLATE AUTHORITIES INSUPPORT EX# DOCUMENT DESCRIPTION DATEORIG./FILED RECORD REFERENCE 

# * 1 DOCKET OFAPPEAL#14-14-00410-CV-as of11-25-2015 MAY28,2014 [FN 1] "PostDismisaalDocket" 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 CIVILORDERS 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 BYANY 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 CLERKWARD 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 ORDERABATING APPEAL AND 2LATER FILED RECORDS[![ DOING SO INCONSPIRACY WITHAPPELLEE'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.ALTERNATIVELYTO 2ndPRECEDING PARAGRAPH.PROVINGTHAT



### ONEORMORE OFTHE 3 JUSTICES OFTHE "B-3"PANEL,ACTING IN CONSPIRACY WITH DEPUTY CLERKWARD (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 IFCOPIED VERBTAIM RECORDS FILED9-25-15 &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 OFAPPELLANT'S 2nd SUPPLEMENTAL CLERK'SRECORD MAY 12,2015 10 PERCURIAM ORDERGRANTING APPELLANT'S 4-20-15MOTION 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 DATEORIG./FILED RECORD REFERENCE



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

## (alternative treatment ofappeal 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 toappellee-who has paid todate nothing topresentrecord 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 tothecospiracy between Deputy ClerkTroy Ward ["Ward"]and Appellee's counsel Nicholas Arthur Parma["Parma"] and otheryetto beidentified aiders, abbetters andCourt 

# insiders todismiss this appeal for alleged "wantofprosecution" afterMovant/Appellantcaused and 

# paid for Original Clerk Record andthree supplements in preparation forfiling his briefafter needed additional and amended findings offact amd conclusions oflaw arefiled by Trial Judge Mike Miller -as this courtordered onmay 7,2015 -will takejudicial notice oftheblatantcriminal tamperings in 

# theselective, truncated and thus misleading record presented tothem 8-27-15 by Deputy Ward so toachieve thedismissal ofthis meritorious appeal dealing with atrocious abuses ofdiscretion by the hon.trialjudgeMichael David Millerwho dismissed Cause #.1997-40590 on March 23,2011, 

# then denied Dov's diligent attempts toreinstate thatcase andthree years later haspermanently enjoined Dov from asserting hislawful property rights-so to protectformerJudgeMark 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 priorto Appellee's new trial court attorneys Sherer &Crow doing so in September 2013(!) 

## Movant asks the Honorable panel to order the 14thcoaclerk to demand recall of the mandatefrom 

## The 11th District Court and grantDov at least 28 days tofile hismotion forrehearing afterruling on 

## pending motion of9-25-15 toextend time for filing motion for rehearing (supplemented 9-28-15 and 

# incorporated) and alternatively treatthis dual prong motion asapplication for mandamus reljef. 

# /w (H-u-lr) .DovK. Avni-pro-se partyin#14-14-00410-cv 150-BForest 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 ofDov's3SCR-delivered 5-13-15 was deleted from appeal record

TFN21 the docket of Appeal#14-14-00410-CV (as of5-28-15) proves that the filing and content ofDov's3SCR.deliveredon



### . 5-13-15 by Chris Daniel'sCivil Post Judgment Deputy ClerkDuaneGilmore was deletedfrom appeal record byMr.Ward(l) [FN3] omission of the emailed Proposed Findings by Appellee (on 5-13-15) Dov's 5-29-15 request for additional,

. findings offact 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/Movanthereby certifies he mailed lastFriday (11-20-2015) conference letterto Appelee's lawfirm in goodfaith attempt to cause Mr.Parma to agree to this dual pronged motion -which Dov plannedto file by 11-25-15 after receiving on 11-16from 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 priortofiling this dual prong motion by US Mail- from USPS downtown Houston centerat 1500 Hadley St. Movant will try again to conferwith Parms by phone and/or -by E-Text-prior to supplementing them 11-30-15 

## when this courtjocated in City of Houston atHarris County.TXopens forbusiness with other courts UNTIL PARMA UNEXPECTEDLY NOTIFIES MOVANT OTHERWISE/THESE MOTIONS ARE"DEEMED OPPOSED" 

## .DovK. Avni-pro-separtyin#14-14-00410-cv 150-B Forest Drive, Jericho, NY11753 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 USMail, 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 MAILINGMONDAY.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 

# DOVAVNI KAMINETZKYa/k/aDOV K. AVNI )( Appellant )( v. )( DOSOHS I, LTD, )( 

# Appellee )( [APPEAL of5-15-14 FROM #1997-40590/11 JDC;HARRIS COUNTY.TX


## EXHIBIT No. "
- TOAPPELLANT'S ORIGINAL MOTION [of11-25-15 ]TORECALL THE "MANDATE"- ALLEGEDLY ISSUED 11-6-2015 BYTHE CLERK OF THIS 14TM COURT-AFTER ITS DEPUTYWARD TAMPERED 

### WITH CASE RECORD. FABRICATED 14COA PANEL'S ORDERSAND DEFRAUDED MOVANT. OR TREAT ITAS ORIGINAL PROCEEDING

### TO BE DECIDED, IFNEEDED-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 

## 1EventType 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 oflate 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 Orderissued 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] [PDF/89 KB]
[PDF/88 KB] [PDF/90 KB]

[PDF/90 KB] [PDF/89 KB] [PDF/94 KB] [ PDF/102 KB] [PDF/81 KB]
[PDFA^2 MB]



### 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 briefdue Appellees briefdue
Order entered Response filed Letter filed Description Appellee

Appellant 

### Supplemental clerks 

## recordfiled Appellant Motionto dismissfiled •; Appellee
Brieffiled
- oral argument requested Appellants briefdue 

### 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 brieffiled r Appellants briefdue j Motion for extension of ; time to file brief 

### \ disposed \ Letterfiled

. Motion for extension of

. time to file brieffiled 

### \ Supplemental clerks J record due

Supplemental clerks record filed / Appellants brief due ', Letterfiled 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

[ PDF/90 KB)

[ PDF/86 KB] [ PDF/91 KB] [PDFA.06 MB] [PDF/160 KB] [PDF/90 KB] [PDF/83 KB] [PDF/9.22 MB] [PDF/92 KB]
(PDF/7.91 MB] [PDF/5.68 MB]

[PDF/88 KB] IPDF/91 KB]

[PDF/1.26 MB] [PDF/391 KB] [PDF/1.63 MB]

[PDF/98 KB] [ PDF/561 KB] [PDF/1.71 MB]

[PDF/90 KB]
[PDF/5.40 MB]



### 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 oftime to file clerks record disposed Extension oftime to file clerks record filed Letter filed
Orderentered Appellants briefdue 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 oflate 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 oftime 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

[PDF/96 KB] [ PDF/48 KB] [PDF/1023 MB]

[ PDF/81 KB] [ PDF/91 KB]

[ PDF/91 KB]

[PDF/106 KB] [PDF/94 KB]

[PDF/8.36 MB] [PDF/135 MB]

[ PDF/95 KB] [ PDF/49 KB] [PDF/94 KB)

[ 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 ofappeal filed in trial court Requestfor 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 

### CalendarType 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: COURTJUDGE: COURT CASE: COURTREPORTER: 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 of6



# http://wvvAv.search.fcccourts.gov/Case.aspx?cn=14-14-00410-CV«&coa=coal4 11/25/2015

# APPEAL No. 14-14-00410-CV 

# DOVAVNI KAMINETZKY a/k/aDOV K. AVNI )( Appellant )( v. )( 

# DOSOHS I, LTD, )( Appellee )( [APPEAL of5-15-14 FROM#1997^0590/11 JDC;HARRIS COUNTY.TX 

# EXHIBITNo. "3 " TO APPELLANT'S ORIGINAL MOTION [of11-25-15 ]TORECALL THE "MANDATE"- ALLEGEDLY ISSUED 11-6-2015 BYTHE CLERK OF THIS 14th COURT-AFTER ITS DEPUTYWARD TAMPERED 

### WITH CASE RECORD. FABRICATED 14COA PANEL'S ORDERSAND DEFRAUDED MOVANT. OR TREAT ITAS ORIGINAL PROCEEDING

### TO 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 

# DOVAVNI KAMINETZKYa/k/a DOV K. AVNI )( Appellant )( v. )( 

# DOSOHS I, LTD, )( Appellee )( [APPEAL of5-15-14 FROM #1997-40590/11 JDC;HARRIS COUNTY.TX 

# EXHIBITNo. "k " TO APPELLANT'S ORIGINAL MOTION [of11-25-15 ]TO RECALL THE "MANDATE"- ALLEGEDLY ISSUED 11-6-2015 BYTHE CLERK OF THIS 14TM COURT-AFTER ITS DEPUTYWARD TAMPERED 

### WITH CASE RECORD, FABRICATED 14COA PANEL'S ORDERSAND DEFRAUDED MOVANT, OR TREAT ITAS ORIGINAL PROCEEDINGTO BE DECIDED, IFNEEDED-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. 1Justice Jamison , . r I REVERSED AND . .. .. _ „ 

### Ford [ RrMnrCrn Justice McCally 

## Appeal from 295th DistrictCourtof Harris County j 1JusticeWise j J Giovanny Laguanv. R.D. Parikh | §Justice Boyce Appeal from County Court atLaw#4 ofFort Bend j DISMISSED j Justice Busby 

### County j IJustice Brown 1 | 14-14-00823-CV Opinion by Justice Boyce
14-14-00823-CV Concurring Opinion by ChiefJustice 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 Chairof the Texas Transportation Commission v. City of Jersey Village Appeal from 165th District Court of Harris County REVERSED AND RENDERED

CONCURRING ChiefJustice Frost Justice Boyce Justice McCally

ChiefJustice 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
ChiefJustice 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. TonyAli, 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 ofLinda 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 of3

10/26/2015

## Released Opinions
Case Number 1 Style Disposition 1Judges 14-15-00785-CV » ^verbank v. SeedergyVentures, Inc., a 

## rPDFl 1CorPorat'on j Appeal from 190th DistrictCourtofHarris County ! I S 1 ABATED | 

### ____TM_i_______ .. __J 

## 14-15 00864-CV j intheInterestof aiM.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 ofTexas Appeal from 239th District Court of Brazoria County AFFIRMED

AFFIRMED ChiefJustice 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 ofTexas Appeal from 344th District Court of Chambers County Gary Martins v. The State ofTexas 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 ofTexas Appeal from Co CrimCt at Law No 13 of Harris County William Charles Wingate v. The State ofTexas Appeal from 232nd District Court of Harris County AFFIRMED

DISMISSED ChiefJustice Frost Justice Jamison Justice Busby Justice Boyce Justice Busby Justice Brown Miyaggi Aleman v. The State ofTexas Appeal from 174th DistrictCourt of HarrisCounty DISMISSED 

# 1 ChiefJustice 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 jUlessiaProcterv.TheStateofTexas Order [PDF] j Appeal from 208th DistrictCourtofHarris County 1 . _ J 14-15-00300-CR

14-15-00301-CR Lashonda Deon Jones v. The State ofTexas Appeal from 221st District Court of Montgomery County Lashonda Deon Jones v. The State ofTexas 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. Download the reader from the Adobe Web site 

# http://www.search.txcourts.gov/Docket.aspx?coa=coal4&FullDate=10/15/2015 Page 2 of3

10/26/2015

## Released Opinions Page 3 of3



## http://www.search.txcourts.gov/Docket.aspx?coa==coal4&FullDate=10/15/2015 10/26/2015

# APPEAL No. 14-14-00410-CV 

# DOVAVNI KAMINETZKY a/k/aDOV K. AVNI )( Appellant )( 

# v. )( DOSOHS I, LTD, )( Appellee )( [APPEAL of5-15-14 FROM #1997^0590/11 JDC;HARRIS COUNTY.TX


## EXHIBIT No. (( *v « 

## TOAPPELLANT'S ORIGINAL MOTION [of11-25-15 ]TORECALL THE "MANDATE"- ALLEGEDLY ISSUED 11-6-2015 BYTHE CLERK OF THIS 14TM COURT-AFTER ITS DEPUTYWARD TAMPERED 

### WITH CASE RECORD. FABRICATED 14COA PANEL'S ORDERSAND DEFRAUDED MOVANT. OR TREAT ITAS ORIGINAL PROCEEDING

### TO BE DECIDED. IFNEEDED-BYMANDAMUS 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 ChiefJustice Frost ANDREVERSED AND Justice Christopher 

# REMANDEDINPART jJusticeBusby JChiefJustice Frost 

# AFFIRMED jJusticeBoyce IJustice McCally 14-13-00989-CV 1 Opinion by i FelixA. Auz v. Mario Cisneros 

### ChiefJustice [PDF] j Appeal from 165th DistrictCourtofHarris County Frost i 

## 14-13-00989-CV j 

## Concurring {FelixA. Auzv. Mario Cisneros Opinion by [PDF] j Appeal from 165th DistrictCourtofHarris County Justice Boyce | 

### j AFFIRMED IN PART ChiefJustice Frost 

### AND REVERSED AND | Justice Boyce REMANDED IN PART Justice McCally 

## {ChiefJustice Frost 

# CONCURRING jJusticeBoyce | JusticeMcCally

__ __ J 14-14-00137-CV Memorandum Opinion by [ PDF] Justice Wise 14-14-00172-CV Opinion by Justice Brown 

# DominicMarroccov. MarkHill j REVERSEDAND Appeal from 164th DistrictCourtof Harris County ] RENDERED 

# j KatySprings &Manufacturing, Inc. v.Joseph AFFIRMEDAS 

# Favalora 1M0DIFIED Appeal from 133rd DistrictCourtofHarris 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 ofTexas 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 jJusticeBusby jJustice Brown 

# ! REVERSEDAND JusticeChristopher 

# REMANDED "TuT | Justice Wise 

# 14-14-00768-CV j Memorandum j In the Interest ofO.Z.O Opinion by [PDF] j Appeal from 257th District Court of Harris County Justice Brown j 14-14-00930-CV 

### Opinion by | ExParte Brett Scott 

## Justice [PDF] j Appeal from 164th DistrictCourtofHarris 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 DCRMortgage IIISub I, LLCv. Lawrence C. Math is Appeal from 126th DistrictCourt ofTravis County Ricardo G. Cedillo, Jason C. Zehner, J. Russell Davis and Davis, Cedillo & Mendoza, Inc. v. Immobiliere Jeuness Establishment Appeal from 215th District Court ofHarris County DISMISSED

REVERSED AND REMANDED ChiefJustice 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 of3

9/3/2015

## Released Opinions

Case Number Style Disposition Judges 

# 14-15-00568-CV j j Memorandum jInReJinsunLLC IGRANTED Opinionby [PDF] j Appeal from 113thDistrictCourtofHarrisCounty 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 BlackStoneBuilder, Inc., | andTheBlackStoneManagement, Inc. v. Zuher ) „„.,,„.,__

_ , . 1 DISMISSED 

### Salameh J 

### Appeal from 295th District Court ofHarris County I ChiefJustice Frost Justice Christopher Justice Jamison
ChiefJustice Frost Justice Christopher Justice Donovan

.... - ..... i 

# 14-15-00713-CV | Memorandum jIn reJ. 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 DistrictCourtofHarrisCounty 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 of the Martha Range f j j Trustd/b/aReliant Engineering andMachine, £ • I 

## USandSamuelRangev. CalvaryChristian | ABATED I ! Fellowship I 1 J Appeal from 234th DistrictCourtofHarris County ; i 1 Criminal Causes Decided

Case Number Style Disposition Judges 

## 14-14-00142-CR j j Robelio Aviles-Barroso v. The State ofTexas 

### pinion y [PDF] Appeal from 337th DistrictCourt ofHarris County Justice Boyce | Tr ' 

## 14-14-00142-CR j 

# Concurring jRobelioAviles-Barrosov. TheStateofTexas Opinionby , . .from 33?th DistrictQounof Harrjs County ChiefJustice 1 Frost ! 1 j AFFIRMED AS MODIFIED

CONCURRING ChiefJustice Frost Justice Boyce Justice McCally
ChiefJustice Frost Justice Boyce Justice McCally i 

### i 

## 14-14-00473-CR j Memorandum jJimmyEarlvan-Cleavev.The State of Texas 

## Opimonby jAppeal from 179th DistrictCourtofHarris County Justice Tr ' Donovan j 

## 14-14-00514-CR j 1 PaulWayne Harrisv. The State ofTexas 

## Memorandum j ^ ,frQm 26gth DjstrjctCourtoffon Bend Opinion by [PDF] j J^r

- , *• „ \. % County Justice Busby f ' AFFIRMED

AFFIRMED Justice Boyce Justice McCally Justice Donovan
ChiefJustice Frost Justice Jamison Justice Busby 14-14-00607-CR Memorandum Opinion by ChiefJustice Frost Brandon Ray Morgan v. The State ofTexas Appeal from 338th DistrictCourt of HarrisCounty AFFIRMED ChiefJustice Frost Justice Jamison VisitingJudge Yates


# http://www.search.txcourts.gov/Docket.aspx?.coa=coal4&FullDate=08/27/2015 Page 2 of3

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 ofTexas Appeal from Co Crim Ct at Law No 15 of Harris County

Ex Parte Chidiebele Gabriel Okonkwo Appeal from 434thJudicial District Court of Fort Bend County I 

### j DavidSidneyMcKeandv.The State of Texas | Appeal from Co Crim Ct atLaw No 7ofHarris 

## jCounty

Ronnie Thibodeaux v. The State ofTexas Appeal from Crim Dist Ct of Jefferson County

Ronnie Thibodeaux v. The State ofTexas Appeal from Crim Dist Ct ofJefferson County

Ronnie Thibodeaux v. The State ofTexas Appeal from Crim Dist Ct ofJefferson 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 

## jIn reRickyDean Fowler I Appeal from County CourtatLaw No 1of j Galveston County 

### I Disposition J AFFIRMED

AFFIRMED

| AFFIRMED I

AFFIRMED

AFFIRMED

AFFIRMED

DENIED

DENIED

DISMISSED Judges ChiefJustice Frost Justice Boyce Justice McCally
ChiefJustice Frost Justice Jamison Justice Busby

ChiefJustice Frost 

### | Justice Jamison 

### jJustice Busby

Justice Boyce Justice Busby IJustice 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
ChiefJustice 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 ofTexas Appeal from 268th District Court of Fort Bend County Quincy Lee Johnson v. The State ofTexas Appeal from 208th District Court of Harris County ABATED
ABATED j j 14-15-00111-CR Leiroi Mickele Daniels v. The State ofTexas 

### Order [PDF] j Appeal from 230th DistrictCourtofHarris County 1 Pastor Isreal Diaz-Bonillav. The State of Texas 

### I Appeal from 182nd DistrictCourtofHarris 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 of3

9/3/2015

# APPEAL No. 14-14-00410-CV 

# DOVAVNI KAMINETZKY a/k/aDOVK. AVNI )( Appellant )( v. )( 

# DOSOHS I, LTD, )( Appellee )( [APPEAL of5-15-14 FROM #1997-40590/11 JDC;HARRIS COUNTY.TX 

# NO. "(p " EXHIBIT o 

## TOAPPELLANT'S ORIGINAL MOTION [of11-25-15 ]TO RECALL THE "MANDATE"- ALLEGEDLY ISSUED 11-6-2015 BY THE CLERK OF THIS 14TM COURT-AFTER ITS DEPUTYWARD TAMPERED 

### WITH CASE RECORD. FABRICATED 14COA PANEL'S ORDERSAND DEFRAUDED MOVANT. OR TREAT ITAS ORIGINAL PROCEEDING

### TO BE DECIDED. IFNEEDED-BYMANDAMUS to TX SUPREME COURT

# JUDGMENT 

# 3ty£iFourtmttlj Court ofAppeals 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 andfound itmeritorious, we orderthe appealDISMISSED. 

# We further orderthat all costs incurred by reason ofthis appeal be paid by appellant, DovAvni Kaminetzky. We further orderthis decision certifiedbelow for observance.

^

# APPEAL No. 14-14-00410-CV 

# DOVAVNI KAMINETZKYa/k/a DOVK. AVNI )( Appellant )( v. )( 

# DOSOHS I, LTD, )( Appellee )( [APPEAL of5-15-14 FROM #1997-40590/11 JDC;HARRIS COUNTY.TX 

# EXHIBITNo. ""7 " TOAPPELLANT'S ORIGINAL MOTION [ of11-25-15 ]TORECALL THE "MANDATE"- ALLEGEDLY ISSUED 11-6-2015 BY THE CLERK OF THIS 14th COURT-AFTER ITS DEPUTYWARD TAMPERED 

### WITH CASE RECORD. FABRICATED 14COA PANEL'S ORDERSAND DEFRAUDED MOVANT. OR TREAT ITAS ORIGINAL PROCEEDING

### TO BE DECIDED, IFNEEDED-BY MANDAMUS to TX SUPREME COURT

# Motion Granted; AppealDismissedandMemorandum OpinionfiledAugust Z /, Zujl5.



## In The 

# Jftoitrtetttff Court o! Appeals NO. 14-14-00410-CV 

# DOV AVNI KAMINETZKY, Appellant V. 

# DOSOHS I, LTD, Appellee On Appealfrom 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 September4, 2014. No reporter's record was taken. No briefhasbeen filed. 

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

# submitted abriefon orbefore 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 

# DOVAVNI KAMINETZKY a/k/a DOVK. AVNI )( Appellant )( v. )( DOSOHS I, LTD, )( Appellee )( [APPEAL of5-15-14 FROM #1997-40590/11 JDC;HARRIS COUNTY.TX


## EXHIBIT No. 

# "/T" TOAPPELLANT'S ORIGINAL MOTION [of11-25-15 ]TO RECALL THE "MANDATE"- ALLEGEDLY ISSUED 11-6-2015 BYTHE CLERK OF THIS 14TM COURT-AFTER ITS DEPUTY WARD TAMPERED 

### WITH CASE RECORD. FABRICATED 14C0A PANEL'S ORDERSAND DEFRAUDED MOVANT. OR TREAT ITAS ORIGINAL PROCEEDING

## TO BEDECIDED, IF NEEDED-BYMANDAMUS to TX SUPREME COURT

## CMH HOMES v. Perez, 340 S.W.3d 444
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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 ConsumerUSA 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 ofCitations © 

## 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 ofCalifornia. Inc., Plaintiff/cross-Claimant/appellant v. Continental Insurance Co.. Etc.
• Badiga v. Lopez. 274 S.W.3d 681 (Tex. 2009) 

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# https://www.courtlistener.com/opinion/895326/cmh-homes-v-perez/? 11/24/2015

### CMH HOMES v. Perez, 340 S.W.3d 444
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# CMH HOMES v. Perez, 340 S.W.3d 444 (Tex. 2011) Sign in or register to save a favorite. (click to dismiss) 

## 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)


# https://www.courtlistener.com/opinion/895326/cmh-homes-v-perez/? 11/24/2015

## CMH HOMES v. Perez, 340 S.W.3d 444 - CourtListener.com Page 3 of9 

# CMH HOMES, et al., Petitioners, v. . 

# Adam PEREZ, Respondent.
No. 10-0688. • 

### Supreme Court ofTexas. Argued February 3, 2011.

Decided May 27, 2011. 

### *446 Brendan K. McBride, The McBride Law Firm, Rio Grande City, DavidL. 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 ofthe availability ofjudicial review ofan 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 trialjudge 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 amandamus petition. The court ofappeals determined it was withoutjurisdiction and dismissed the suit. We agree with the court ofappeals' determination that Texas Civil Practice and Remedies Code section 51.016 does not allow an interlocutory appeal ofan order appointing an arbitrator. However, under these circumstances, CMH Homes's appeal may properly be considered as a petition for writ ofmandamus. 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 ofhis 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' OnMarch 8, 2010, after ahearing, the trialcourtissued anorderappointing Gilberto Hinojosa as arbitrator. Although the order was titled "OrderonPlaintiffs 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 

# https://www.courtlistener.com/opinion/895326/cmh-homes-v-perez/? 11/24/2015

## CMH HOMES v. Perez, 340 S.W.3d 444 - CourtListener.com Page 4 of9 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 andStandardof Review This court hasjurisdiction to determine whether the court of appeals correctly decided itsjurisdiction. See Badiga v.Lopez, 274S.W.3d681, 682 n. 1 (Tex. 2009) (citing Tex. Dep'tofCrim. Justice v. Simons, 140 S.W.3d 338, 343 n. 13 (Tex. 2004)). We review the court of appeals' determination of itsjurisdiction 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 overfinal 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 ifpermitted 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 ofappeals lackedjurisdiction under Texas Civil Practice and Remedies Code section 51.016 ofan interlocutory appeal ofan 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 ofmandamus. 

## A. Texas CivilPractice andRemedies Code Section 51.016 Prior to the Legislature's 2009 amendment to the Texas Arbitration Act (TAA), parties seeking to appeal an orderrefusing to compel arbitration would commonly file two separate appellate proceedings. Underthe 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), aparty 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., 196S.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 ajudgment 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 ofthe 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 orderarbitration toproceed, (C) denying anapplication under section 206 of this title to compelarbitration, (D) confirmingor denyingconfirmation of an award or partial award, or (E) modifying, correcting, or vacating an award; 

## (2) aninterlocutory ordergranting, continuing,or modifyingan injunctionagainst an arbitration that is subject to this title; or 

# https://www.courtlistener.com/opinion/895326/cmh-homes-v-perez/? 11/24/2015

## CMH HOMES v. Perez, 340 S.W.3d 444 - CourtListener.com Page 5 of9 (3) a final decision with respect to an arbitration that is subject to this title. (b) Except as otherwise provided in section 1292(b) oftitle 28, an appeal may not be taken from an interlocutory order 

### (1) granting a stay ofany action under section 3 of this title; (2) directing arbitration to proceed under section 4 ofthis 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 orderbeing 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 ofGilberto Hinojosa as arbitrator. See Del ValleIndep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992) ("[I]t is the character and function ofan 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 ofthe order was to answer that question. Section 5 ofthe 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 ofan order appointing an arbitrator is "permitted by Section 16" because some federal circuit 

## cases may have entertainedinterlocutory appeals regarding appointmentofarbitrators pursuanttosection 5J 'However, none ofthe cited cases mentions whether the appeal is interlocutory and all but one ofthe cited cases fails to specifically 

## discuss itsjurisdictionalbasis orcite section \6P'Nat'lAm. Ins. Co. v. Transamerica *450 OccidentalLife Ins. Co., 328 F.3d 462 (8th Cir.2003) (affirming the district court's selection of an arbitratorpursuantto 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 "afinal 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 ofall parties and claims, the orderremains interlocutory and cannot be appealed 

# undersection 16(a)(3).[4]5eeIn re Gulf Exploration, LLC, 289 S.W.3d 836, 839 (Tex.2009) ("[TJhere canbe 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 itsjurisdictionbefore 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 circuitcase that speaks directly tothejurisdictionalissue isO.P.C. Farms Inc. v. ConopcoInc., which held that under section 16, the trial court's order appointing an arbitratorwas not a final decision and was thus 

# unappealable.161 154F.3d 1047, 1048-49 (9th Cir. *451 1998). Thecourtexplained: "[T]he only basisfor 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 ofjurisdiction." Id. 

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## CMH HOMES v. Perez, 340 S.W.3d 444
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The appellatejurisdiction ofTexas courts in this case is based on federal law. The court ofappeals hadjurisdictionto 

## considerthe trial court'sorderif"appeal... wouldbepermittedby 9U.S.C. Section 16" infederal court. TEX. CIV. PRAC. & REM.CODE § 51.016. Because there is no apparent federal approach tojudicial review under section 16 oforders 

### appointing arbitrators, we will not extrapolatejurisdiction 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 ofpromoting the policy considerations ofrigorous and expedited enforcement of arbitration agreements,... to consider amending the Texas Act to permit interlocutory appeals oforders issued pursuant to the Federal Act.'" See In re D. Wilson, 196 S.W.3d at 780 n. 4 

### (quotingJackB.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. SeeJackB. Anglin, 842 S.W.2d at 272 ("[L]itigants who allege entitlement to arbitration under the Federal 

## Act, and in the alternative, underthe TexasAct, areburdened with the need to pursueparallelproceedingsan interlocutory appeal ofthe trial court's denial under the Texas Act, and a writ ofmandamus 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 GrandeXarinII,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 oforder 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 

## intendtomake all interlocutory orders under the FAA appealable, only those permitted by section 16 ofthe FAA.^1 Our interpretation does not promote parallel proceedings ofarbitration 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 withoutjurisdiction 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 ofthis type oforder, CMH Homes requests in the alternative that we instruct the court ofappeals to treat CMH Homes's appeal as a petition for 

### writ ofmandamus 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 areplacement. Id. We explained the importance of contractual arbitrator selection: "Since its inception, one ofthe central purposes ofthe 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 ofarbitrators chosen by each ofthe parties.'" Id. at 65 (quoting Lobo & Co. v. PlymouthNavigation Co., 187F.Supp. 859, 860 (S.D.N. Y. I960)). 

### Although this court decided LouisianaPacific 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. Seeid. 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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## CMH HOMES v. Perez, 340 S.W.3d 444 - CourtListener.com Page 7 of9 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] appellatejurisdiction absent legislative mandate." 842 S.W.2d at 272. However, CMH Homes invoked the court ofappeals' appellatejurisdiction by specifically requesting that 

### its appeal be treated as a mandamus petition. See WarwickTowers Council ofCo-Owners v. Park Warwick, L.P., 244 S.W.3d 838, 839 (Tex.2008) ("[T]he factor which determines whetherjurisdiction has been conferred on the appellate court 

### is not the form or substance ofthe bond, certificate or affidavit, but whether the instrument was filed in a bona fide attempt to invoke *453 appellate courtjurisdiction." (internal quotations and citations omitted)); see also Linwoodv. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994) ("The court ofappeals ... hasjurisdiction 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) ("Ifthe 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 appellantanopportunity 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 ofappeals 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 ofappeals must not affirm or reverse ajudgment 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 apetition for review as a petition for writ of mandamus where the appellant/relator specifically sought mandamus relief. Powelly. 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 ofmandamus. Appeals from interlocutory orders are accelerated, and an accelerated appeal is perfected by filing a notice of appeal within twenty days ofthe 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., 21AS.W.3d672,676 (Tex. 2009) (citations omitted). An appeal 

## complying withthe rulesgoverning anaccelerated appeal wouldgenerally betimely formandamus 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 ofbriefand page length requirement for appeal to the courts ofappeals), with TEX.R.APP. P. 52.3,.6 (stating contents ofbriefand page length requirement for original proceedings at the supreme court and courts ofappeals). "[T]he interests ofpromoting the policy considerations ofrigorous 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 furtherjudicial resources by requiring CMH Homes to file a separate document with the title "petition for writ ofmandamus" 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 reliefin the court ofappeals and preserved that issue in this 

### Court, and becausejudicial efficiency militates against requiring CMH Homes to file a separate original proceeding, we instruct the court ofappeals to consider this appeal as a petition for writ ofmandamus. Today, we speak only to the 

### propriety of mandamus reviewand not to the propriety of mandamus reliefinthis particularcase. 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 compelarbitration, CMH Homes presented three namesfor consideration as potential 

## arbitrators. Perezrejected the suggested arbitrators andpresented CMHHomeswith aproposed 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 morearbitratornamesfor Perez'sconsideration. Instead, Perez sent a copyof the 

# https://www.courtlistener.com/opinion/895326/cmh-homes-v-perez/? 11/24/2015

## CMH HOMES v. Perez, 340 S.W.3d 444 - CourtListener.com Page 8 of9 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 ofinterests 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 ofconflicts 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 LifeIns. 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 inNationalAmerican andACEquip represented to the circuit courts that the order being appealed was 

## final. SeeAppellant'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 OccidentalLifeIns. Co., 328F.3d462 (8th Cir.2003). The appellees did not challenge this 

## assertioninACEquip, seeBrief ofPlaintiff-Appellee, ACEquip Ltd. v.Am. Eng'g Corp., 315F.3d 151 (2dCir.2003), and 

## appearnot to havechallenged theassertion inNationalAmerican, seeReply Brief ofAppellant, Nat'lAm. Ins. Co. v. Transamerica OccidentalLife Ins. Co., 328F.3d462 (8thCir.2003). In both cases,the partiestreatedthe orderappointing 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 thedistinction betweenembedded andindependentproceedings inGreen Tree, whichmayraise questions abouttheprecedential 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] Thelanguage of section51.016, andtherefore FAA section 16, alsoindicates theLegislature did not intendto createa comprehensive appellate scheme makingall FAA ordersappealable 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 

## at839 ("[T]heFAA 'generally permits immediate appeal oforders 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 thatanti-arbitration decisions are immediately appealable under § 16(a)(1)"). 

## [8] Although wenote that CMHHomes's petitionwas notcertified atthis Court asrequiredbyTexas Rule ofAppellate Procedure 52.3(j), we areconfidentthatCMH Homes willfully comply withRule 52onremandto thecourtofappeals. About FAQ Tour 

# https://www.courtlistener.com/opinion/895326/cmh-homes-v-perez/? 11/24/2015

# APPEAL No. 14-14-00410-CV 

# DOVAVNI KAMINETZKY a/k/a DOVK. AVNI )( Appellant )( v. )( DOSOHS I, LTD, )( Appellee )( [APPEAL of5-15-14 FROM #1997-40590/11 JDC;HARRIS COUNTY.TX


## EXHIBIT No. 

# "/6" TOAPPELLANT'S ORIGINAL MOTION [of11-25-15 ]TORECALL 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 ORDERSAND DEFRAUDED MOVANT, OR TREAT ITAS ORIGINAL PROCEEDINGTO BE DECIDED, IFNEEDED-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

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### (did 

# Col Filed: August 9th, 2012 Status: Precedential Docket Number: 01-11-00276-CV 

### Fingerprint: 56fedba9ca5516198cbIb2d3b 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 

## https://www.courtlistener.eom/opinion/3122204/in-re-d-kw-family-lp/? 11/24/2015

## in Re D & KW Family, L.P.,
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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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## in Re D & KW Family, L.P., - CourtListener.com Page 4 of 11

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. 

## https://www.courtlistener.com/opmion/3122204/in-re-d-kw-family-lp/? 11/24/2015

## in Re D & KW Family, L.P.,
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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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• 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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