Don Prochaska v. Matthew Barnes, Montcalm Co., LLC, and Schain Leifer Guralnick ( 2015 )

ACCEPTED
01-15-01044-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/17/2015 2:59:12 PM
CHRISTOPHER PRINE
CLERK
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
12/17/2015 2:59:12 PM
Lance L. Livingston CHRISTOPHER A. PRINE
llivingston@feesmith.com
Direct Dial (972) 980-3266 Clerk
December 17, 2015
Via E-filing
Court of Appeals
First District
301 Fannin Street
Houston, Texas 77002-2066
Re: Court of Appeals Number: 01-15-01044-CV
Trial Court Case Number: 2013-35800
Dear Clerk:
On behalf of Appellant Don Prochaska, by the filing of this letter, I am paying the
required $205 filing fee to prosecute the above referenced appeal as required in the attached
letter.
Thank you for your attention to the above. If you have any questions, please feel free to
contact me.
Very truly yours,
FEE, SMITH, SHARP & VITULLO, L.L.P.
Lance L. Livingston
Attorney
LLL/MS
cc: All Counsel of Record:
Patrick Zummo pzummo@zoomlaw.com; docket@zoomlaw.com
Ananda N. Chaudhuri achaudhuri@fleischmanlawfirm.com
Keith M. Fleischman keith@fleischmanlawfirm.com
FILE COPY
SHERRY RADACK CHRISTOPHER A. PRINE
CHIEF JUSTICE CLERK OF THE COURT
TERRY JENNINGS JANET WILLIAMS
EVELYN KEYES CHIEF STAFF ATTORNEY
LAURA CARTER HIGLEY
JANE BLAND
MICHAEL MASSENGALE
Court of Appeals PHONE: 713-274-2700
FAX: 713-755-8131
HARVEY BROWN
REBECA HUDDLE
First District www.txcourts.gov/1stcoa.aspx
RUSSELL LLOYD 301 Fannin Street
JUSTICES
Houston, Texas 77002-2066
December 10, 2015
Gregg S. Weinberg Clinton J. Echols
Roberts Markel Weinberg PC Rymer, Moore, Jackson & Echols, P.C.
2800 Post Oak Blvd 57th Floor 2801 Post Oak Blvd., Ste 250
Houston, TX 77056 Houston, TX 77056
* DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *
Anthony Leonard Vitullo Frank Carroll III
Fee,Smith,Sharp & Vitullo LLP Roberts Markel Weinberg Butler Hailey PC
Three Galleria Tower 2800 Post Oak Bvd, 57th Floor
13155 Noel Rd Ste 1000 Houston, TX 77056
Dallas, TX 75240 * DELIVERED VIA E-MAIL *
* DELIVERED VIA E-MAIL *
Lance Livingston
Jonathan Azano Fee, Smith, Sharp & Vitullo, LLP
Fee, Smith, Sharp & Vitullo,LLP Three Galleria Tower
Three Galleria Tower Dallas, TX 75240
13155 Noel Rd Ste 1000 * DELIVERED VIA E-MAIL *
Dallas, TX 75240
* DELIVERED VIA E-MAIL * Patrick Zummo
Law Offices of Patrick Zummo
John L. Malesovas 3900 Essex Lane Ste 800
Malesovas Law Firm Houston, TX 77027
816 Congress Ste 1265 * DELIVERED VIA E-MAIL *
Austin, TX 78701
* DELIVERED VIA E-MAIL *
RE: Court of Appeals Number: 01-15-01044-CV
Trial Court Case Number: 2013-35800
Style: Don Prochaska v. Johnathan Feldman
GENERAL INFORMATION
On December 08, 2015, a letter of assignment from the 334th District Court trial-court
clerk and a copy of the notice of appeal filed by Don Prochaska in the trial court was received
and docketed as Cause Number 01-15-01044-CV. This Notice contains information about some
of the rules and procedures that govern prosecution of an appeal pending before the First Court
of Appeals.
FILE COPY
Texas Rule of Appellate Procedure 9.6 requires parties and counsel to communicate
about a pending appeal only through the Clerk’s office and they may not communicate with
either the justices or their staff about a case. It is also improper to send a document to the Court
about an appeal unless a copy of it is served on all other parties to the appeal at the same time.
See TEX. R. APP. P. 9.5(d), (e).
Effective January 1, 2014, all attorneys in civil cases and criminal cases must
electronically file all documents (except a document submitted under seal or subject to a motion
to seal) through the EfileTexas.gov electronic filing system. A party representing themselves pro
se (without an attorney) in a civil case, is encouraged to e-file documents, but is not required to
do so. Electronically filed documents must conform to TEX. R. APP. P. 9.4 and must be
completed through EfileTexas.gov, http://www.efiletexas.gov. Electronically filed briefs must
comply with TEX. R. APP. P. 9.4 and with the Texas Supreme Court's Redaction Guidelines
found at http://www.supreme.courts.state.tx.us/ebriefs/RedactionGuidelines.pdf.
INFORMATION ABOUT THE FILING FEE
Unless an appellant is exempt from paying filing fees or has been declared indigent, the
appellant must pay the required $205 filing fee to prosecute the appeal. See TEX. R. APP. P. 5
(requiring payment of fees in civil cases unless excused) and 20.1 (listing requirements for
establishing indigence).
This letter is NOTICE to the appellant that the required filing fee must be paid within
twenty (20) days of the date of this notice. A party who files electronically may pay by credit
card through the Tex.gov process. Or, a party may pay with cash in person at the Clerk's office,
301 Fannin, Houston, Texas 77002. A filer may also pay by (1) a money order, cashier’s check,
or certified check issued by a U.S. financial institution or (2) a money order issued by the United
States Postal Service. A money order or a check must be made payable to “Clerk, First Court of
Appeals.”
There is only one $205 filing fee for each appellate case, regardless of how many
appellants there may be, or if multiple notices of appeal are filed. Multiple appellants who are
not indigent or exempt must determine amongst themselves how the filing fee will be paid.
INFORMATION ABOUT THE APPELLATE RECORD
This letter is NOTICE to the appellant that the Court may dismiss an appeal for want of
prosecution, if the clerk’s record is not filed and it is appellant’s fault. See TEX. R. APP. P.
37.3(b); 42.3. This letter is also NOTICE to the appellant that if it is appellant’s fault that the
reporter’s record is not filed, the Court may decide the appeal on those issues or points that do
not require a reporter’s record for a decision. See TEX. R. APP. P. 37.3(c). Any motion related
to informalities in the manner of bringing this appeal must be filed within thirty (30) days after
the appellate record is filed. TEX. R. APP. P. 10.5(a).
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Unless an appellant has established indigence under Texas Rule of Appellate Procedure
20.1, the trial-court clerk and court reporter are not required to file the clerk’s and reporter’s
records until appellant has paid the required fees to prepare and certify the records, or has made
satisfactory arrangements to pay the fees. See TEX. R. APP. P. 35.3(a)(2), (b)(3).
From information currently available, it appears that the trial court signed the final
judgment or other appealable order on November 3, 2015. Because the notice of appeal
indicates that a post-judgment motion was not filed, unless the Court receives information to the
contrary, the trial court clerk is due to file the clerk’s record and the court reporter is due to file
the reporter’s record on or before December 17, 2015.
The appellant and/or appellee should inform the Court as soon as possible if (1) this
appeal is accelerated or (2) if there is disagreement about (a) the date the trial court signed the
final judgment or appealable order or (b) whether a post-judgment motion or request for findings
of fact and conclusions of law was timely filed in the trial court.
It is mandatory that both the clerk’s record and the reporter’s record be filed
electronically. Both the trial-court clerk and the court reporter are asked to complete the
information sheet on the “Forms” page of the Court’s website,
http://www.txcourts.gov/1stcoa/practice-before-the-court/forms.aspx, and file it with the Court
within ten (10) days of the date of this Notice. The parties do not need to file a motion to extend
time to file either the clerk’s record or the reporter’s record. See Texas Rules of Appellate
Procedure 34.5(b)(1), (c)(2), 35.3(c), and 35.6(b)(1) and Appendix C of the Texas Rules of
Appellate Procedure for electronic filing related to preparation of the appellate record.
Parties are encouraged to work together and with the trial court clerk and court reporter to
properly designate all necessary items and portions of the testimony to be included in the initial
records. The Court generally will not grant a motion to extend time to file a brief because a party
requests to supplement the record with an item or portion of the testimony that the party did not
timely designate for inclusion in the initial clerk’s record or reporter’s record. See TEX. R. APP.
P. 10.5(b), 34.5(c)(1), 34.6(d), 38.6(d).
INFORMATION ABOUT FILING DOCUMENTS
Texas Rule of Appellate Procedure 9.3 controls the number of paper copies and
documents filed in paper form. All documents must include a certificate of service. See Tex. R.
App. P. 9.5(d), (e). All civil motions must include a certificate of conference, TEX. R. APP. P.
10.1(a)(5), and require a $10 filing fee, unless the movant has established indigence or is exempt
from the advance payment of filing fees, e.g., the State or a political subdivision of the State.
See TEX. R. APP. P. 5; FEES CIV. CASES B (3); Op. Tex Att’y Gen. No. DM-459 (1997). The
Court treats a civil motion requesting multiple types of relief as separate motions and requires a
separate $10 filing fee for each motion.
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INFORMATION ABOUT THE DOCKETING STATEMENT
An appellant is required to file a docketing statement. See TEX. R. APP. P. 42.3. Until the
clerk’s record is filed, the docketing statement is the primary source of accurate information
about a newly-filed appeal. The information is used to establish appellate deadlines and to send
notices to the correct parties at the correct addresses. The “Forms” section of the Court’s
website includes a docketing statement or the appellant may call the Clerk’s office and ask that
one be mailed. In this case, the Docketing Statement should be filed within twenty (20) days of
the date of this notice.
Section X must be completed if an appellant believes that his/her civil appellate matter
may qualify for the Pro Bono Program sponsored and administered solely by the State Bar of
Texas (SBOT) and the Houston Bar Association’s Appellate Practice Section (HBA). See the
following websites for information: (1) State Bar of Texas Pro Bono Program, First Court of
Appeals, http://www.tex-app.org/DrawOnePage.aspx?PageID=82; (2) the Houston Bar
Association’s website,http://www.hba.org/services/;and (3) http://www.txcourts.gov/1stCOA,
Practice Before the Court, Forms, Civil Docketing Statement.
Section XI of the docketing statement is an optional section that requests information
related to potential participation in an alternate dispute resolution process or mediation. The
Court strongly encourages the parties to provide this information due to the successful history of
alternative dispute resolution/mediation processes, even in cases where such success initially
appeared unlikely.
INFORMATION ABOUT BRIEFS
Effective January 1, 2014, all attorneys in civil cases and criminal cases must
electronically file all documents (except a document submitted under seal or subject to a motion
to seal) through the EfileTexas.gov electronic filing system. A party representing themselves pro
se (without an attorney) in a civil case, is encouraged to e-file documents, but is not required to
do so. Electronically filed documents must conform to TEX. R. APP. P. 9.4 and must be
completed through EfileTexas.gov, http://www.efiletexas.gov. Electronically filed briefs must
comply with TEX. R. APP. P. 9.4 and with the Texas Supreme Court's Redaction Guidelines
found at http://www.txcourts.gov/media/124902/redactionguidelines.pdf.
INFORMATION ABOUT ATTORNEYS APPEARING BEFORE THE COURT
Texas Rule of Appellate Procedure 6 governs matters related to an attorney’s
representation of a party before the Court. Attorneys must promptly notify the Clerk’s office of
any change of address or change in designation of the lead counsel for a party. A nonresident
attorney who is not a member of the State Bar of Texas must satisfy the requirements for
participation in a Texas legal matter found on the Board of Law Examiners’ website
http://www.ble.state.tx.us.
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INFORMATION ABOUT NOTICES TO PARTIES
Notice must be sent to all parties of any judgment, mandate, or order issued. See Tex. R.
App. P. 12.6. If a party is represented by an attorney, notice will be sent to the party’s lead
counsel. See TEX. R. APP. P. 9.5(b). Information available to the public about a case may be
found on the “Case Information” page of the Court’s website. Parties may sign up for e-mail
notices about activity in their case on the “CaseMail” page of the website.
STANDARDS OF APPELLATE CONDUCT
The Court follows the Standards of Appellate Conduct adopted by the Supreme Court of
Texas and the Court of Criminal Appeals. All attorneys and parties—including pro se litigants—
are expected to fully comply with these standards, as well as all applicable provisions of the
Texas Rules of Appellate Procedure, the Texas Disciplinary Rules of Professional Conduct, and
the Code of Judicial Conduct. See the “Court Rules” page, “Other Rules Governing Attorneys”
of the Texas Supreme Court’s website, http://www.txcourts.gov/supreme.aspx, or call and ask
that a copy be mailed to you.
Should you have questions at any time throughout the appellate process of your case,
please do not hesitate to call the Clerk's office at 713-274-2700.
Sincerely,
Christopher A. Prine, Clerk of the Court
cc: The Honorable Harris County District Clerk's Office - Civil (DELIVERED VIA E-MAIL)
Judge 334th District Court (DELIVERED VIA E-MAIL)
Court Reporter 334th District Court (DELIVERED VIA E-MAIL)
Hon. Olen Underwood (DELIVERED VIA E-MAIL)
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