Debra v. Jennings, Esq. and Debra v. Jennings, P.L.L.C. v. American Asset Finance, L.L.C. ( 2015 )
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ACCEPTED 14-14-00860-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 6/22/2015 11:03:57 PM 14-1400860-CV CHRISTOPHER PRINE CLERK No.14-11-00977-CV _________________________________________________ FILED IN 14th COURT OF APPEALS IN THE COURT OF APPEALS HOUSTON, TEXAS FOR THE FOURTEENTH DISTRICT 6/22/2015 11:03:57 PM CHRISTOPHER A. PRINE HOUSTON, TEXAS Clerk __________________________________________________ DEBRA JENNINGS, ESQ. AND DEBRA JENNINGS, P.L.L.C. Appellant V. AMERICAN ASSET Appellee _____________________________________________________________ On Appeal from the County Civil Court at Law No. Four Harris County, Texas; Cause No. 1030758 _____________________________________________________________ RESPONSE TO MOTION TO DISMISS _____________________________________________________________ LAW OFFICE OF DEBRA V. JENNINGS Debra V. Jennings lawyerdvj@yahoo.com State Bar No. 10631850 6140 HWY 6, # 269 Missouri City, Texas 77459 Telephone: (832) 230-4455 Facsimile: (1832) 442-3700 TO THE HONORABLE COURT OF APPEALS: NOW COMES Appellant, Debra Jennings, and submits this response in opposition to Appellee’s Motion to Dismiss and in support will show: 1. THE MOTION TO DISMISS FAILS BECAUSE IT IS NOT IN THE PROPER FORM A. THE MOTION DOES NOT CONTAIN A CERTIFICATE OF CONFERENCE AS REQUIRED BY TEXAS RULE OF APPELLATE PROCEDURE Texas Rule of Appellate Procedure 10.1(a)(5) states that a motion filed “must” contain: (5) in civil cases, except for motions for rehearing and en banc reconsideration, contain or be accompanied by a certificate stating that the filing party conferred, or made a reasonable attempt to confer, with all other parties about the merits of the motion and whether those parties oppose the motion. Tex. R. App. P. 10.1(a)(5) (emphasis added). A close examination of the motion to dismiss (Exhibit “A”) reveals that it contains no such certificate. The motion should be denied and appellee should, at a minimum be required to re-file the motion with a correct certificate of conference. B. THE MOTION DOES NOT ATTACH EXHIBITS OR AFFIDAVITS AS STATED IN THE MOTION. Appellees motion to dismiss (a significant and dispositive request) reads in its entirety as follows: See MOTION TO DISMISS (Exhibit “A). As one can see, there is no substantive argument and only three (3) conclusory headings. The final sentence of the Motion to Dismiss reads: “Appellee will rely on the attached Brief and Affidavit with Exhibits.”
Id. Unfortunately, thereis no attached brief, no attached affidavit, and no attached exhibits. By its own definition, the motion is deficient, because there is nothing attached to “rely” upon. The motion should be denied and appellee should, at a minimum be required to re-file the motion with the correct brief and affidavits. 2. THE MOTION FAILS BECAUSE IT SEEKS RELIEF IDENTICAL TO THAT SOUGHT IN APELLEE’S RESPONSIVE BRIEF ON THE MERITS. Attached hereto as Exhibit B is “Appellee’s Brief in Support of Motion to Dismiss Appeal” which was filed six (6) days before the “Motion to Dismiss.” Although it appears to be a brief in support of the instant motion, it is not. It cannot be. It was filed 6 days before the motion to dismiss and on the day that the Appellee’s Brief was due. It was not accompanied by any motion. See APPELLEE’S BRIEF IN SUPPORT OF MOTION TO DISMISS APPEAL (Exhibit “B”); see also, ORDER SETTING JUNE 12 BRIEF DEADLINE (Exhibit “C”). The June 12, filing is Appellee’s brief on the merits. Not only was it filed on June 12, it was not accompanied by a motion. Moreover, the undersigned was informed today by the Court of Appeals deputy clerk that the June 12 filing has been lodged as “Appellee’s Brief” and that the undersigned should treat it as such and file a reply brief before the expiration of 20 days from June 12th. See AFFIDAVIT OF DEBRA JENNINGS REGARDING CLERK CONFERENCE (Exhibit “D). The online case information page also confirms this by showing the June 12 filing under the heading of “Briefs,” and not “Case Events”. See 14TH COURT OF APPEALS ONLINE CASE INFORMATION PAGE (Exhibit “E”). Most importantly, this Court issued an order on June 12, acknowledging that “Appellee’s Brief” had been filed on that day and that the Reply Brief was due 20 days from June 12. See ORDER ON REPLY DATE (Exhibit “F”). A close examination of “Appellee’s Brief in Support of Motion to Dismiss Appeal” shows that it makes (albeit with more complete discussion) the same exact arguments that are in the instant “motion.” Compare APPELLEE’S BRIEF IN SUPPORT OF MOTION TO DISMISS APPEAL (Exhibit “B”) with MOTION TO DISMISS (Exhibit “A). Because the “motion” requests a complete disposition of the Appeal (dismissal) a full panel of judges will be required to rule on it. See Tex. R. App. P. 10.4 (“…in a civil case, a single justice should not do the following: … (2) dismiss or otherwise determine an appeal or a motion for rehearing.”). Thus, it would be a waste of judicial resources to empanel 3 justices only to determine that the motion lacks proper form and exhibits, when the better drafted request on the same grounds has already been filed as a brief on the merits and is awaiting a reply brief and a 3 justice panel. Because the same arguments have been filed as a brief on the merits, denial of the instant motion on technical grounds will not prejudice Appellee. The same arguments will be heard when the court convenes on the merits. The motion should be denied as duplicative. 3. THE COURT SHOULD ORDER APPELLANT TO RE-FILE HER BRIEF TO AVOID SUBSTANTIAL PROCEDURAL CONFUSION. A. THE CLERKS RECORD IS INCOMPLETE. Attached as Exhibit “G” are pages 36 and 37 of the Clerk’s Record filed in this case. As one can see, the affidavit beginning on page 36 is cut off and incomplete. CLERK’S RECORD SELECTED PAGES (Exhibit “G”). The actual affidavit has another page. See COMPLETE AFFIDAVIT (Exhibit “H”). This affidavit is one a crucial exhibit to appellant’s brief that did not make it into the Clerk’s Record. The undersigned has requested by letter that the Clerk below supplement the record to include the complete affidavit and a number of other critical documents. See LETTER REQUESTING SUPPLEMENTATION OF CLERK’S RECORD (Exhibit “I”). B. THE APPELLANT’S BRIEF IS IN NEED OF REVISION Admittedly, Appellant’s Brief was not well written. It was prepared in the midst of intense settlement negotiations and proceedings in the lower court. It needs to be amended and supplemented. The undersigned takes full responsibility. Appellant has asked by way motion for an extension for time in which to file her Reply Brief. In doing so appellant intends to supplement or amend the originally filed brief. See MOTION FOR EXTENSION TO FILE SUPPLEMENTAL REPLY BRIEF (Exhibit “J”). The rules allow such supplementation. Texas Rule of Appellate Procedure 38.7 states that “A brief may be amended or supplemented whenever justice requires, on whatever reasonable terms the court may prescribe.” See Tex. R. App. P. 38.7. Rule 38.9 suggests that such corrections should be allowed and the case should only be dismissed for briefing defects on the filing of a second defective brief: 38.9. Briefing Rules to be Construed Liberally Because briefs are meant to acquaint the court with the issues in a case and to present argument that will enable the court to decide the case, substantial compliance with this rule is sufficient, subject to the following. (a) Formal Defects. If the court determines that this rule has been flagrantly violated, it may require a brief to be amended, supplemented, or redrawn. If another brief that does not comply with this rule is filed, the court may strike the brief, prohibit the party from filing another, and proceed as if the party had failed to file a brief. (b) Substantive Defects. If the court determines, either before or after submission, that the case has not been properly presented in the briefs, or that the law and authorities have not been properly cited in the briefs, the court may postpone submission, require additional briefing, and make any other order necessary for a satisfactory submission of the case. Tex. R. App. P. 38.9 (emphasis added). A second chance is the rule. In Berardinelli v. Pickels, 05-12-01390-CV,
2014 WL 6560029(Tex. App.—Dallas Oct. 23, 2014, no pet.) the Court stated: Berardinelli was given the opportunity to file an amended brief. However, the amended brief fails to comply with the briefing requirements set out in Texas Rule of Appellate Procedure 38.1. See Tex. R. App. P. 38.1(g), (i);
Bolling, 315 S.W.3d at 895– 96. Accordingly, this Court is authorized to dismiss Berardinelli's appeal. See Tex. R. App. P. 42.3;
Bolling, 315 S.W.3d at 895–96.
Id. at *3(citing Bolling v. Farmers Branch Indep. Sch. Dist.,
315 S.W.3d 893(Tex. App.— Dallas 2010, no pet.)) (emphasis added). Here, if the court were simply to direct the parties to start over, supplementing the record, and re-filing the briefs in proper form, the confusing process of amending and supplementing in the reply brief could be avoided. C. A SIGNIFICANT NUMBER OF OUTSTANDING PROCEDURAL MOTIONS ARE ON FILE Currently, a number of outstanding motions clutter the non-brief docket of this case. Appellants have filed a motion to compel production of exhibits. See MOTION TO COMPEL EXHIBITS (Exhibit “K”). A ruling on such motion would be unnecessary if the Court were to order appellant to file a properly conforming Appellant’s Brief. Appellee has filed a motion requesting a second extension for filing of its appellee’s brief. See SECOND MOTION FOR APPELLEE BRIEF EXTENSION (Exhibit “L”). The very existence of such motion suggests that appellees did not intend to file the “Brief in Support of Motion to Dismiss” as its brief on the merits. An examination of the brief shows that it does not argue the merits, but only the technical defects. See APPELLEE’S BRIEF IN SUPPORT OF MOTION TO DISMISS APPEAL (Exhibit “B”). A ruling on the second extension motion would be unnecessary if the Court were to order appellant to file a properly conforming Appellant’s Brief. As discuss previously, the appellant filed a motion for extension to file its reply brief. See MOTION FOR EXTENSION TO FILE SUPPLEMENTAL REPLY BRIEF (Exhibit “J”). Filing a reply brief to correct errors in the original brief is a confusing way to correct such errors. The better way would be to order appellant to file a properly conforming Appellant’s Brief. Appellant has filed a motion for an extension of time to file this very response and was confused as to its due date. MOTION FOR TIME ON DISMISSAL RESPONSE (Exhibit “M”). See also AFFIDAVIT OF DEBRA JENNINGS REGARDING CLERK CONFERENCE (Exhibit “D). All of these concerns are obviated if this Court were to order Appellant to file a properly conforming Appellant’s Brief, restarting the schedule. D. A RE-FILED APPELLANT’S BRIEF WOULD RESOLVE THE OUTSTANDING ISSUES. As contemplated by the Texas Rules of Appellate Procedure, this Court is vested with the inherent power to “…postpone submission, require additional briefing, and make any other order necessary for a satisfactory submission of the case.” Tex. R. App. P. 38.9(b) (emphasis added). As implied by the Rules of Appellate Procedure, it is not proper to dismiss the appeal for the defects which are argued in the motion to dismiss. Rather, the Court should order a re- filing of appellant’s brief and, per
Berardinelli, supra, only dismiss the case if a second defective brief is filed. Moreover, to order the re-filing of the appellant’s brief, will obviate this Court’s wasting resources. It will not have to issue rulings on the confusing morass of motions currently before the Court. WHEREFORE, PREMISES CONSIDERED, APPELLANT PRAYS that this Court (1) deny Appellees’ motion to dismiss; (2) order appellant to re-file its opening brief within 30 days of the date of the Court’s order to re-file; and (3) deny all pending motions or place such motions in abeyance pending the re-filing of appellant’s brief. Respectfully submitted, /s/ Debra V. Jennings ___________________________ Debra V. Jennings lawyerdvj@yahoo.com State Bar No. 10631850 6140 HWY 6, # 269 Missouri City, Texas 77459 Telephone (832) 230-4455 Facsimile: (1832) 442-3700 Attorney for Appellant Of Counsel (legal writing and research only) Stuart Starry State Bar No. 19079050 35 Ruebens Road Sandia Park, NM 87947 CERTICATE OF SERVICE This is to certify that a true and correct copy of the foregoing Response to Motion to Dismiss was served on June 22, 2015, to the following counsel of record: Andrew Totz State Bar No. 24004958 Totz Ellison & Totz, P.C. 2211 Norfolk, Suite 510 Houston, Texas 77098 Phone: 713-275-0305 Fax: 713-275-0306 EXHIBIT A ACCEPTED 14-14-00860-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 6/18/2015 11:28:22 AM CHRISTOPHER PRINE CLERK NO. 14-14-00860-CV FILED IN 14th COURT OF APPEALS IN THE COURT OF APPEALS HOUSTON, TEXAS FOURTEENTH DISTRICT OF TEXAS 6/18/2015 11:28:22 AM AT HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk DEBRA V. JENNINGS, ESQ. and DEBRA V. JENNINGS, P.L.L.C. Appellant v. AMERICAN ASSET FINANCE, L.L.C. Appellee ON APPEAL FROM THE COUNTY COURT LA W NO. FOUR OF HARRIS COUNTY, TEXAS TRIAL CAUSE NO. 1030758-401 MOTION TO DISMISS Appellee, American Asset Finance, L.L.C., files this motion to dismiss and in support says as follows: 1. This appeal is untimely. The foreign Judgment at issue on this appeal became final when filed in Texas on April 22, 2013. Appellant had 30 days from that date to contest the Judgment and failed to do so. 2. The appeal of the trial court's Order Appointing Receiver dated September 17,2014, is also untimely. Appellant had 20 days from the date of this Order to appeal and failed to do so. 3. This appeal should be dismissed because it is unsupported by any record .evidence. WHEREFORE, Appellee requests that the court dismiss this appeal. Appellee will rely on the attached Brief and Affidavit with Exhibits. Respectfully submitted, TOT~OTZ. P.C. By: ANDREW B. TOTZ TBA # 24004958 2211 Norfolk, Suite 510 Houston, Texas 77098 Phone: 713-275-0305 Fax: 713-275-0306 Email: atotz@tetiegal.com ATTORNEYS FQR APPELLEE CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above Motion to Dismiss with supporting brief and Affidavit with Exhibits was served on Appellants' through its counsel, via facsimile on the Ji!31ay of June, 2015, as follows: Via Facsimile No. 1-8321442-3700 Debra V. Jennings Debra V. Jennings, P.L.L.C. 14090 Southwest Freeway, Suite 300 Sugar Land, TX 77478 ~-.., - ANDREW B. TOTZ EXHIBIT B ACCEPTED 14-14-00860-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 6/12/2015 3:08:13 PM CHRISTOPHER PRINE CLERK NO. 14-14-00860-CV FILED IN IN THE COURT OF APPEALS 14th COURT OF APPEALS HOUSTON, TEXAS FOURTEENTH DISTRICT OF TEXAS AT HOUSTON, TEXAS 6/12/2015 3:08:13 PM CHRISTOPHER A. PRINE Clerk DEBRA JENNINGS ESQ. AND DEBRA JENNINGS, P.L.L.C Appellant v. AMERICAN ASSET FINANCE, L.L.C. Appellee ON APPEAL FROM THE COUNTY COURT LAW NO. FOUR OF HARRIS COUNTY, TEXAS TRIAL CAUSE NO.I030758 and 1030758-401 APPELLEE'S BRIEF IN SUPPORT OF MOTION TO DISMISS APPEAL ANDREW B. TOTZ TOTZ ELLISON & TOTZ, P.c. SBOT #24004958 2211 Norfolk, Suite 510 Houston, TX 77098 Phone: 713/275-0305 Fax: 713/275-0306 ATTORNEYS FOR APPELLEE, AMERICAN ASSET FINANCE, L.L.c. IDENTITY OF PARTIES & COUNSEL Appellee, American Asset Finance, LLC, represented by Andrew B. Totz Totz Ellison & Totz, P.C. Texas Bar No. 24004958 2211 Norfolk, Suite 510 Houston, TX 77098 Phone: 713/275-0305 Fax: 713/275-0306 Appellant, Debra Jennings, Esq. and Debra Jennings, P.L.L.C., represented by Debra V. Jennings Texas Bar No. 10631850 6140 HWY 6, #269 Missouri City, Texas 77459 Phone: 832/230-4455 Fax: 1-832/442-3700 TABLE OF CONTENTS The Appeal is Untimely. NO. 14-14-00860-CV DEBRA JENNINGS, ESQ AND DEBRA JENNINGS, P.L.L.C. Appellants v. AMERICAN ASSET FINANCE, L.L.C. Appellee APPELLEE'S BRIEF IN SUPPORT OF ITS MOTION TO DISMISS APPEAL Appellee, American Asset Finance, L.L.c., submits its Motion to Dismiss the Appeal. The appellee will be referred to as Appellee. Appellants, Debra Jennings, Esq. and Debra Jennings, P.L.L.C., will be referred to as Appellant. Because Appellee has not been provided with the record on appeal, it relies on the Affidavits of a Managing Member of Appellee and counsel and the attached exhibits. STATEMENT OF THE CASE AND STATEMENT OF FACTS The Notice of Appeal in this matter was filed on October 16, 2014. The appeal seeks to collaterally attack a Final Judgment that was initially entered in New Jersey on May 25,2012. (Exhibit 1 to Affidavit of Timothy J. Foley, Esq.). The appeal further seeks to reverse the Texas trial court's Order Appointing a Receiver dated September 17,2014. The appeal is untimely on both issues and should be dismissed. Appellants first sought to vacate the Judgment in New Jersey three years after it was entered. The New Jersey court denied Appellants' application by Order dated April 13, 2015, stating among other things that the motion was "untimely." (Exhibit 2 to Affidavit of Timothy J. Foley, Esq.). On April 22, 2013, the New Jersey Judgment was filed with the Harris County Court in accordance with the Uniform Enforcement of Foreign Judgments Act (UEFJA), Tex.Civ.Prac.& Rem.Code Sec. 35.001-35.008 under Case No. 1030758. (Exhibit 3 to Affidavit of Timothy J. Foley, Esq.). On that date, the Judgment became a Final Judgment in Texas. Appellants, a lawyer and her law firm, had 30 days from that date to contest the Judgment. They did not. Accordingly, the appeal should be dismissed as untimely. Once the Judgment became final in Texas, the Court closed that case. A new case was opened for post-judgment proceedings, Case No.1 030758-401. (Exhibit 1 to Affidavit of Andrew Totz, Esq.) After motions, hearings, discovery attempts and general obfuscation by Appellants, a Receiver was appointed by Order dated September 17,2014. (Exhibit 1 to Affidavit of Andrew Totz, Esq.) Appellants had 20 days to appeal that Order but failed to do so. Accordingly, the appeal should be dismissed as untimely. Appellants' Brief in support of their appeal lacks any citations to the record. The Appellate Rules require that any facts are to be supported by citations to the record. Likewise, any arguments are to be supported by record references. Appellants' Brief is unsubstantiated inadmissible hearsay and their appeal should be dismissed. SUMMARY OF THE ARGUMENT The New Jersey Final Judgment against Appellants became enforceable as a Texas judgment on the date it was filed. Walnut Equipment Leasing Company, Inc. v. Wen Lung Wu et aI.,
920 S.W.2d 285(1996). That date was April 22, 2013. Appellants had 30 days from that date to file a motion to contest the judgment or appeal. Malone v. Emmert Indus. Corp.,
858 S.W.2d 547(14th Dist Ct. of Appeals, Houston 1993). Tex. R. App. P. 26.l(a). Appellants failed to do so. This appeal was filed on October 16,2014, a year and a halflate. The appeal should be dismissed. Any objections regarding technical defects in the filing of the judgment have been waived because they were not timely made. Carter v. Cline, Case No. 03-10-00855 (3d Dist.Ct.App. October 13,2011) citing, Tanner v. McCaTthy, 274 S.W.3d 311,316 (Tex.App.- Houston [14th Dist.] 2008, no pet.) and Tri-Steel Structures, Inc. v. Hackman,
883 S.W.2d 391, 395 (Tex.App.-Fort Worth 1994, writ denied). On September 17,2014, the court below entered an Order appointing a Receiver. That Order was to be appealed within 20 days of entry. Sclafani v. Sclafani,
870 S.W.2d 608(1 st Dist.Ct. App., Houston 1993). Appellant's appeal was not so filed and should be dismissed. Finally, Appellants, an attorney and her law firm, have failed to include any record references in support of their factual and legal arguments in violation of this Court's rules. Accordingly, the appeal should be dismissed. Berardinelli v. Pickels, Case No. 05-12-01390 (5 th Dist.Ct.App. October 23,2014) citing, Bolling v. Fanners Branch Independent School District,
315 S.W.3d 893,896-7 (Tex. App.-Dallas 2010, no pet.). ARGUMENT AND AUTHORITIES 1. The Appeal is Untimely. a. The New Jersey Judgment became final when it was filed in Texas. In Walnut Equipment Leasing Company, Inc. v. Wen Lung Wu et al.,
920 S.W.2d 285(1996), the Texas Supreme Court made clear that when a foreign judgment is filed in accordance with the UEFJA, it becomes "enforceable as a Texas judgment on the date it was filed."
Id. at .In the case at bar, that date was April 22, 2013. Once the foreign judgment was filed, the burden shifted to appellant to prove the judgment was not valid or final. Mitchim v. Mitchim, 518 S.W.2d 362,364 (Tex. 1975)("foreignjudgment that appears valid and final makes prima facie case for party seeking to enforce it, and burden is on resisting party to prove judgment is not valid or final"). b. Appellant had 30 days from the filing of the foreign judgment to contest its enforceability or to file an appeal. When the appellant has not filed in the trial court a timely motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusions of law, the notice of appeal must generally be filed within thirty days after the judgment or other appealable order is signed. Tex. R. App. P. 26.1(a). Without a timely filed notice of appeal, the appellate Court lacks jurisdiction. See Tex. R. App. P. 25.1(b); In re E.M.A., No. 05-11-00596- CV,2011 WL 3672297, at *1 (Tex. App.-Dallas Aug. 23, 2011, no pet. h.) (per curiam) (mem. op.).). See also, Malone v. Emmert Indus. Corp.,
858 S.W.2d 547(14th Dist Ct. of Appeals, Houston 1993) (Motion to contest enforcement of a final judgment must be made within 30 days of filing or court loses plenary jurisdiction.) Appellant at bar filed none of the motions that would lengthen their time to appeal. Accordingly, they had 30 days from the date the judgment was filed to appeal and failed to do so. This Court, therefore, lacks jurisdiction to hear this appeal. c. Appellant has waived any objections to an alleged technical defect in the filing of the judgment because she did not timely challenge the alleged procedural defect. Appellant claims for the first time on appeal that the Affidavit of the Judgment creditor filed on April 22, 2013, did not contain the creditor's address. Appellant, an attorney, does not support this claim with any record evidence. Rather, Appellant makes reference to an exhibit that she failed to file with the Court or serve on Appellee. Aside from being procedurally deficient, Appellant's argument is also substantively deficient. Because Appellant did not raise that issue in the trial court, timely or otherwise, it is deemed waived. Carter v. Cline, Case No. 03-10-00855 (3d Dist.Ct.App. October 13,2011) (technical defect of failure to file attorney affidavit with authenticated judgment was waived when not timely made) citing, Tanner v. McCarthy, 274 S.W.3d 311,316(Tex.App.-Houston [14th Dist.] 2008, no pet.) (failure to file Affidavit not a jurisdictional defect) and Tri-Steel Structures, Inc. v. Hackman,
883 S.W.2d 391, 395 (Tex.App.-Fort Worth 1994, writ denied)(failure to effectuate notice to debtor was technical violation ofUEFJA that did not prejudice debtor where debtor had opportunity to assert defenses by timely-filed motion.). Appellant could have contested the alleged defect by a timely-filed motion but chose not to. Accordingly, her untimely objection is waived. d. Appellant has failed to appeal the Order Appointing Receiver within 20 days as req uired by law. Appellant attempts to appeal an order dated September 17, 2014, wherein the trial court appointed a Receiver. It is well settled, however, that an appeal from an Order appointing a Receiver must be filed within 20 days of the Order. Sclafani v. Sclafani,
870 S.W.2d 608(1 sl Dist.Ct. App., Houston 1993) See also, CPRC 51.014 (1)(allowing interlocutory appeal of order appointing receiver); TRAP 28.1 (a) (interlocutory appeals when allowed by statute are treated as accelerated appeals); TRAP 28.1 (b)( accelerated appeal to be filed in accordance with 26.1(b)); and TRAP 26.1 (b )(providing notice of appeal to be filed 20 days after order is signed). Appellant's Notice of Appeal was filed on October 16,2014, more than 20 days after the Order was signed and the appeal, therefore, is untimely and should be dismissed. 2. The Appeal is Unsupported by Record References and Should be Dismissed. Appellant does not make one reference to the record in her entire Brief. Rather, she cites sporadically to two exhibits which she curiously labels Exhibit #1 and Exhibit #3. Even more curious, Appellant fails to provide these exhibits either to the court or to the Appellee. The Rules of Appellate Procedure are clear that factual statements and legal arguments must be supported by references to the record. TRAP 38.1(g) and 38.1(i). The Brief is also supposed to contain an Appendix (TRAP 38.1 (k)), which Appellant's Brieflacks. The result is a Brief based on inadmissible hearsay, unsupported by any facts in the record or otherwise. In similar circumstances, the appellate court has dismissed the appeal. Berardinelli v. Pickels, Case No. 05-12-01390 (5 th Dist.Ct.App. October 23,2014) citing, Bolling v. Farmers Branch Independent School District ,
315 S.W.3d 893, 896-7 (Tex. App.-Dallas 2010, no pet.). In Berardinelli and Bolling, the appellate court brought the defects in briefing to the attention of the pro se plaintiffs and they failed to cure those defects. Here, Appellant is an attorney and a law firm and even though they are appearing pro se, they should know better. They should not be given a second bite of the apple and the appeal should be dismissed because of these glaring omissions. PRAYER The Appellee prays that its Motion to Dismiss is granted. Respectfully submitted, TOTZ ELLISON & TOTZ, P.c. By: _ _ V----'---_ _ ANDREW B. TOTZ SBOT #24004958 2211 Norfolk, Suite 510 Houston, TX 77098 Phone: 713/275-0305 Fax: 713/275-0306 ATTORNEYS FOR APPELLEE, AMERICAN ASSET FINANCE, L.L.C. Certificate of Compliance I hereby certify that this Motion was typed in Microsoft Word and contains 2045 words in this brief is less than 14,000 words and therefore it complies with Texas Rules of Appellate Procedure. ANDREW B. TOTZ CERTIFICATE OF SERVICE I certify that a copy of the Appellee's Brief in Support of its Motion to Dismiss along with the Affidavits in support of the Motion were served on Appellant Debra V. Jennings (Debra Jennings, P.L.L.C.), whose address is 6140 HWY 6, #269, Missouri City, Texas, 77459, whose fax number is 1-832/442-3700, by facsimile on June 12,2015. v. ANDREW B. TOTZ CERTIFICATE PURSUANT TRAP RULE 10.1(5) NO. 14-14-00860-CV DEBRA V. JENNINGS ESQ. AND § IN THE COURT OF APPEALS DEBRA V. JENNINGS, P.L.L.C., § FOURTEENTH DISTRICT OF TEXAS Appellants, § AT HOUSTON, TEXAS § V. § § ON APPEAL FROM COUNTY COURT § AT LAW NO.4 OF HARRIS COUNTY, AMERICAN ASSET FINANCE, LLC, § TEXAS, TRIAL CAUSE NO. 1030758 Appellee. § AND 1030758-401 § AFFIDA VIT OF TIMOTHY J. FOLEY THE STATE OF NEW JERSEY } } COUNTY OF PASSAIC } BEFORE ME, the undersigned authority, on this day personally appeared Timothy 1. Foley, who, being by me duly sworn, on oath stated: 1. I am the Managing Member of American Asset Finance, LLC, Appellee in this cause. I have personal knowledge of the facts stated in this affidavit. They are true and correct. I am authorized to make this Affidavit on behalf of American Asset Finance, LLC. 2. American Asset Finance, LLC, owns a Final Judgment against Debra V. Jennings, Esq. and Debra V. Jennings, P.L.L.c., Debtors/Appellants. The Final Judgment was initially entered on May 25,2012, in the Superior Court of New Jersey, Law Division, Passaic County. (Exhibit 1.) 3. On or about February 20, 2015, Appellants moved in the Superior Court of New Jersey, Law Division, Passaic County, to vacate the Final Judgment. By Order dated April 13, 2015, the court denied Appellants' motion to vacate as, among other things, untimely. (Exhibit 2.) 4. The Final Judgment was domesticated in County Court at Law No.4 of Harris County, Texas, on April 22, 2013. (Exhibit 3.) The judgment is valid and subsisting, and a supersedeas bond has not been approved and filed to suspend execution of the judgment. Timothy J. Foley SIGNED AND SWORN TO before me on _-,~:..£.--.,~/----,9,-"__:, 2015. Sh ry L. Foley, E q. A torney-at-Law State of New Jersey Authorized to Administer Oaths Pursuant to NJ.S.A. §§ 41:2-1 & 46:14-6.1 EXHIBIT 1 , F I ~, E·D 1A~ . FOLEY & FOLEY MAY 2· ~ '20\2 . ;r1l::l 23 Deerbrook Lane West Milford, NJ 07480 GARRY 8. ROTHSTAQT, J,S,e. .._.,- ~ '" Pl10ne (973) 304-6003 Counsel for Plaintiff ANmrucAN ASSET FINANCE, LLC, J-I '-15013-12(':) SUPERIOR COURT OF NEW JERSEY Plaintiff. LAW DIVISION: PASSAIC COUNTY .v. DOCKET NO. PAS-L-704-12 DEBRA V. JENNINGS, ESQ, and DEBRA CIVlL ACTION V.JENNINGS, P.L,L.C., Dejelldams. ORDEn OF FINAL JUDGMENT pYDEFAULT . THIS MATTER being opened to the Court by plaintiff American Asset Finance, lle \» (AAF), by and through its counsel. Foley & Foley, f01' entry of a final judgment iri favor of AA.F ~ ~ and against defendants Debra V. Jennings, Esq. and Debra V. Jennings, P.L.L.. C., on notice to ~~ -. ~.' said defen dants, and default having been entered as against said defendants on April 26, 2012, and it appearing from the papers and evidence presented that plaintiff is entitled to such rolief, and for good cause shown, it is 011 the ,,2.s. .~ay . of ~ ,2012, ORDERED, that judgment Is hereby entered in favol' of American Asset Finance, LLC and against defenpants Debra V. Jennings, Esq. andbebra V. Jennings, P.L.L.C.,j9intly and severally, in the amount of $29,029.95, with post-judgment interest at the prevailing rate from ~\tft! ffltlnfJe.lI ff,j !7mnm def~r.
Document Info
Docket Number： 14-14-00860-CV
Filed Date： 6/22/2015
Precedential Status： Precedential
Modified Date： 9/30/2016