Shea Palavan v. Brian McCulley and TBW Development, LLC, Boulevard Realty, LLC ( 2016 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER ON MOTION
Appellate case name: Shea N. Palavan v. Brian McCulley, Boulevard Realty, LLC,
and TBW Development, LLC
Appellate case number: 01-15-00730-CV
Trial court case number: 1047954 and 1047954-002
Trial court: County Civil Court at Law No. 3 of Harris County
On July 21, 2014, appellant, Shea N. Palavan, an attorney proceeding pro se, had
timely filed a notice of appeal in the trial court from the order, signed on June 30, 2014,
granting the appellees’ motion to dismiss appellant’s appeal and denying appellant’s
request for a writ of certiorari in the above-referenced trial court cause number 1047954.
That prior appeal was assigned to this Court under appellate cause number 01-14-00604-
CV. On April 2, 2015, this Court dismissed that appeal for lack of jurisdiction because
the June 30, 2014 order was not a final, appealable judgment or interlocutory order. See
Palavan v. McCulley, et al., No. 01-14-00604-CV, 2015 WL 1544520, at *2 (Tex.
App.—Houston [1st Dist.] Apr. 2, 2015, no pet.). After our mandate issued on June 12,
2015, appellate cause number 01-14-00604-CV was marked as an inactive appeal.
On August 25, 2015, appellant, proceeding pro se, timely filed a notice of appeal
in the trial court from the final judgment, signed on July 28, 2015, granting the appellees’
motion for summary judgment in the above-referenced trial court cause number 1047954
and related cause number 1047954-002. See TEX. R. APP. P. 26.1. This second appeal
was assigned to this Court under appellate cause number 01-15-00730-CV. On
September 3, 2015, a second letter of assignment was filed in this Court under appellate
cause number 01-15-00730-CV by the trial clerk indicating that appellant had also filed a
notice of appeal on August 25, 2015, from the trial court’s prior June 30, 2014 order, in
the above-referenced trial court cause number 1047954.
On October 12, 2015, the clerk’s record was filed in this Court for appellate cause
number 01-15-00730-CV. On December 9, 2015, appellant’s brief was filed by the pro
se appellant and his counsel, Sean M. Palavan, who has yet to file a notice of appearance
in this Court. On December 31, 2015, appellant filed this motion to transfer
supplemental record, stating that on November 13, 2015, he had filed a request in the trial
court for a supplemental clerk’s record to be filed in this appeal, but that on December 8,
2015, the trial clerk inadvertently filed the supplemental clerk’s record in the prior,
inactive appellate cause number 01-14-00604-CV. Thus, appellant requests that this
Court transfer the supplemental clerk’s record in appellate cause number 01-14-00604-
CV to this appellate cause number 01-15-00730-CV.
After reviewing the inactive appellate cause number 01-14-00604-CV, it appears
that an original clerk’s record was inadvertently filed by the trial clerk on December 8,
2015, when it should have been filed in this appellate cause number 01-15-00730-CV as
a supplemental clerk’s record. Although appellant properly filed a request in the trial
court on November 13, 2015, for a supplemental clerk’s record to be filed for trial court
cause numbers 1047954 and 1047954-002, that request did not specify that those
supplemental records should be filed in this new appellate cause number 01-15-00730-
CV, which may have caused the inadvertent filing in 01-14-00604-CV. See TEX. R. APP.
P. 34.5(c)(1), (3) In any event, appellant’s motion to transfer supplemental record is
GRANTED. Accordingly, the Clerk of this Court is ORDERED to remove the original
clerk’s record filed on December 8, 2015, from appellate cause number 01-14-00604-CV
and file it as supplemental clerk’s record in this appellate cause number 01-15-00730-
CV. See id. 34.5(c)(3).
In addition, although Boulevard Realty, LLC was listed in the prior appellate
cause number 01-14-00604-CV and in the notice of appeal of this case as a co-appellee,
represented by separate lead counsel, Timothy R. Ploch, in the trial court, the Clerk of
this Court inadvertently left this party out in the caption of this cause number 01-15-
00730-CV. Thus, the Clerk of this Court is ORDERED to add Boulevard Realty, LLC
as a co-appellee and to enter its counsel’s name, Timothy R. Ploch, and contact
information to ensure that future communications are sent to that appellee. See TEX. R.
APP. P. 6.3(b).
Finally, because neither appellant’s counsel, Sean M. Palavan, nor Boulevard
Realty, LLC’s counsel, Timothy R. Ploch, have entered an appearance in this case, both
Sean M. Palavan and Timothy R. Ploch are ORDERED to file a notice of appearance in
this Court within 10 days of the date of this Order. See TEX. R. APP. P. 6.1(c).
It is so ORDERED.
Judge’s signature: /s/ Laura C. Higley
 Acting individually
Date: January 12, 2016