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


                                                                                            FILED IN
                                                                                    14th COURT OF APPEALS
                                                                                         HOUSTON, TEXAS



                                APPEAL No. 14-14-00410-CV
                                                                                         NOV 3 0 2015
DOV AVNI KAMINETZKY a/k/a DOV K. AVNI                                    )(         Christopher a. prine
                                                          Appellant )(          L              CLERK
                                       v.                                )(
DOSOHS I, LTD,                                            Appellee       )(
 [APPEAL of 5-15-14 FROM #1997^0590/11 JDC;HARRIS COUNTYJX

 APPELLANT DOV K.AVNI's ORIGINAL OPPOSED MOTION TO TAKE JUDICIAL"!
OF RECORDS OF #14-14-00410-CV -DISMISSED ON 8-27-15 BY 14COA's "B-3" PANEL
and OTHER UNDISPUTABLY CORRECT RECORDS OF THIS APPELLATE COURT
PROVING MOVANT'S ALLEGATIONS OF DEPUTY CLERK WARD'S UNLAWFUL ACTS
TO DISMISS APPEAL BYTAMPERINGS IN 14C0A RECORDS AND FRAUDS ON "B3" PANEL and MOVANT.
THEN RECALL THE "11-6-2015 MANDATE "AND RULE ONAPPELLANT'S PENDING MOTIONS.

                                 AND ALTERNATIVELY
 IF EITHER FOREGOING MOTION IS DENIED BEFORE COURT'S 2015 TERM ENDS.TREAT
THIS MOTION fas supplemented by 11-301 AS ORIGINAL PROCEEDING FOR MANDAMUS

   TO THE HONORABLE JUSTICES OF THIS 14th COURT OF APPEALS OF TEXAS.
   APPELLANT DOV K. AVNI a/k/a DOV AVNI KAMINETZKY ["Dov"] respectfully prays for the
   taking of judicial notice by the members of this "B-3" panel who were not privy to the tamperings
  in the record ofthis appeal by deputy Clerk Troy Ward (proven by documents attached here and
  to Movant's pending motion for extension oftime for rehearing-filed 9-25 .supplemented 9-28-15
  in anticipation of10-13-15 delivery of5th Supplemental Clerk Record Dov hasdesignated 9-4-15)
  Dov asks hon. justices Boyce.Busby and Brown -who unanimously decided on August 27,2015
   to dismiss this appeal-acting in total reliance on fraudulent representations of Deputy
 Chief Clerk TROY D. WARD ["WARD"] who knowingly and willfully omitted from the record of
  this case important items prior to 8-26-15 rushed setting ofdismissal hearing onnext morning
  without notice to Dov-to take judicial notice of Ward's unlawful acts,then recall 11-6-15 mandate
                                             I.
   DEPUTY WARD'S UNLAWFUL ACTS PROVEN BELOW MATERIALLY ALTERED THE RECORD ADVERSLY TO DOV
  (1) omission/deletion of 124 page supplemental clerk record of 5-13-15(!)
   (2) paying no attention and not referencing any of the other supplemental
       Clerk Records ordered and paid by Dov.Appellee ordered no record (!)
   (3) reinstating on his own decision this appeal-abated since May 7.2015
      without judicial review -as this court customarily does after abatement
       and based on 10 page selective skinny record with 325 pages missing.
Movant attaches and incorporates here appendix with case records.relevant appellate rules
and authorities and will supplement them by Monday, 11-30 as Court reopens after holiday
 INDEXOF EXHIBITS FROM RECORDS OF APPEAL #14-14-00410-CV PROVING MOVANT'S ALLEGATIONS OF
 •CLERK'S UNLAWFUL ACTS TO DISMISS APPEAL BY FRAUDS, and APPELLATE AUTHORITIES IN SUPPORT
 EX#     DOCUMENT DESCRIPTION                                        DATEORIG./FILED RECORD REFERENCE

* 1 DOCKET OF APPEAL #14-14-00410-CV-as of11-25-2015 MAY 28,2014 [FN 1] "Post Dismisaal Docket"
  2.14COA RELEASED ORDERS AND.OPINIONS [11-6-15]                     NOV. 25,2015      txcourts.gov(14coa
  3. LIST OF 14™ COA RELEASED ORDERS AND OPINIONS                    NOV.25,2015        txcourts.gov(14coa
       FOR 2015 4th QUARTER - STARTING OCTOBER 1, 2015

       [including CIVIL ORDERS RELEASED ON OCT 15-2015 WHICH
       DEPUTY CLERK WARD FABRICATED-STATING THAT DOV'S
       MOTIO FOR EXTENSION OF TIME TO FILE HIS MOTION FOR
       REHEARING "WAS GRANTED IN PART. DENIED IN PART"?!!]

J 4.14COA RELEASED ORDERS AND OPINIONS [10-15-15]                    NOV.25,2015      txcourts.gov(14coa
        NO SCINTILLA OF ANY ORDER ENTERED BY ANY
        JUDGE OR PANEL IN DOV'S DISMISSED APPEAL
        #14-14-00410-CV- PROVING CRIMINAL ACTS OF
        TAMPERING ETC BY DEPUTY CLERK T.WARDf!)

  5. RELEASED ORDERS AND OPINIONS OF 14™ COA                         AUG, 27,2015    txcourts.gov(14coa) 5.

   6 UNSIGNED JUDGMENT WITH NO 'PER CURIAM" DESIGNATION              AUG. 27,2015    txcourts.gov(14coa)

   7 MEMORANDUM OPINION BYB-3 PANELDISMISSING APPEAL                 AUG. 27,2015    txcourtS.gov(14coa)
     PROVING THAT (A) DEPUTY CLERK WARD MANIPULATED THE
       DOCKET OF APPEAL #14-14-00410-CV UPON ITS 8-26-2015 HURRIED
       SETTING FOR DISMISSAL DELETING THEREFROM ALL REFERENCES
       TO5-7-15 ORDER ABATING APPEAL AND 2 LATER FILED RECORDS[![
       DOING SO IN CONSPIRACY WITH APPELLEE'S ATTORNEY N. PARMA -
       WHO FILED MOTION TO DISMISS THE APPEAL WITHOUT CONFERENCE
       WITHOUT PROVIDING EVIDENCE.WHILE CONCEALING MATERIAL FACTS
       WITHOUT SERVING DOV THEREWITH -ALL DEFECTS KNOWN TO WARD!

                            AND ALSO PROVING THAT
       ALL THREE "B-3" PANEL JUSTICES ARE RECUSABLE AS FACT WITNESSES
       REGARDING WHAT DETAILS WERE IN THE DOCKET THEY SAW 8-27-15

        AND .ALTERNATIVELY TO 2nd PRECEDING PARAGRAPH.PROVINGTHAT
         ONEOR MORE OF THE 3 JUSTICES OF THE "B-3"PANEL,ACTING IN
         CONSPIRACY WITH DEPUTY CLERK WARD (AND PERSON SETTING PANEL)
         AND APPELLEE'S ATTORNEY PARMA TO BRING ABOUTCASE DISMISSAL
         WHILE ASSURING THE NON-CONSPIRING MEMBERS OF THE PANEL WHO
         WERE NOT INFORMED OF 5-7-15 ABATEMENT AND 5-12-05 SUPPLEMENT

 INCORPORATING BY REFERENCE.AS IF COPIED VERBTAIM RECORDS FILED 9-25-15 &9-28-15 IN #14-14-00410-CV
   8     APPELLANT'S DESIGNATION OF 3rd SUPPLEMENTAL RECORD          APRIL 16,2015    3SCR114-132; EX. "1"

  9     INDEX OF APPELLANT'S 2nd SUPPLEMENTAL CLERK'S RECORD         MAY 12,2015      2SCR       ; EX."1"

  10 PER CURIAM ORDERGRANTING APPELLANT'S 4-20-15 MOTION              MAY 7,2015      EX. "1" at 05-07-2015

  11 14 COA "RELEASED ORDERS &OPINIONS"-for 05/07/2015               MAY7, 2015       txcourts.gov(14coa)

  12 INDEX OF APPELLANT'S 3rd SUPPLEMENTAL CLERK'S RECORD             JUNE 3,2015     3SCR1-3;     EX."1"

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



                                                -a-
                              [ LIST OF EXHIBITS CONTINUEDl
EX#    DOCUMENT DESCRIPTION                                     DATE ORIG./FILED RECORD REFERENCE
  5 CMH HOMES v.Perez 340 S.W.3d 444 (Tex 2011)                 May 27,2011 CourtListener.com
     (alternative treatment of appeal as mandamus)                          [discovered 11-24-15]

  16    In re D&KW Family LP .Relator [01-11-00276-cv]            AUG.9,2012 CourtListener.com,
       following CMH HOMES v.Perez 340 S.W.3d 444
       (Tex.2011) (alternative treatment as mandamus)                         [discovered 11 -24-151

II.NO PREJUDICE WILL ACCRUE TO APPELLE FROM GRANTINGTHIS DUAL PRONG MOTION
   No prejudice will accrue to appellee-who has paid todate nothing to present record to this panel
                                                  hi
PRO-SE MOVANT'S PRAYER FOR RELIEF/ALTERNATIVELY PETITIONER FOR MANDAMUS RELIEF
WHEREFORE pro-se Movant Dov K.Avni prays that the members ofthis honorable B-3 appellate
panel who were not privy to the cospiracy between Deputy Clerk Troy Ward ["Ward"]and Appellee's
counsel Nicholas Arthur Parma ["Parma"] and otheryet to be identified aiders, abbetters and Court
insiders to dismiss this appeal for alleged "want of prosecution" after Movant/Appellant caused and
paid for Original Clerk Record and three supplements in preparation for filing his brief after needed
additional and amended findings offact amd conclusions oflaw are filed by Trial Judge Mike Miller
-as this court ordered on may 7,2015 -will takejudicial notice ofthe blatant criminal tamperings in
the selective, truncated and thus misleading record presented to them 8-27-15 by Deputy Ward so
to achieve the dismissal ofthis meritorious appeal dealing with atrocious abuses ofdiscretion by
the hon. trial judge Michael David Miller who dismissed Cause #.1997-40590 on March 23,2011,

then denied Dov's diligent attempts to reinstate thatcase and three years later has permanently
enjoined Dov from asserting his lawful property rights-so to protectformer Judge Mark Davidson

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

5-25-2000 that was never entered intothe minutes of #97-40590,nor served on Dov by 11th JDC at
any time prior to Appellee's new trial court attorneys Sherer &Crow doing so in September 2013(!)

Movant asks the Honorable panel to order the 14thcoa clerk to demand recall of the mandate from
The 11th District Court and grant Dov at least 28 days to file his motion for rehearing after ruling on

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

incorporated) and alternatively treat this dual prong motion as application for mandamus reljef.
                                                                            /w (H-u-lr)
                                                         .Dov K. Avni -pro-se party in #14-14-00410-cv
                                                                 150-B Forest Drive, Jericho, NY 11753
                                                          -3-            Cell #516-318-3791 E-Mail: dovduba1@aol.com


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


TFN11 the docket of Appeal #14-14-00410-CV (as of 9-5-15) proves that no court order was entered after notice was given
  to Dovby 3 justices panel or their leader on July 3.2015as falsely represented by 14thcoa Clerk-acting by deputy clerk
. Troy P. Wardiand further proves the filing and content of Dov's 3SCR-delivered 5-13-15 was deleted from appeal record

  TFN21 the docket of Appeal#14-14-00410-CV (as of 5-28-15) proves that the filing and content of Dov's 3SCR.deliveredon
. 5-13-15 by Chris Daniel'sCivil Post Judgment Deputy ClerkDuaneGilmore was deleted from appeal record by Mr.Ward(l)

[FN3] omission of the emailed Proposed Findings by Appellee (on 5-13-15) Dov's 5-29-15 request for additional,
. findings of fact and judge Miller's deial thereof 6-1-15 from Gilmore's 3SCR (of 7-2-15) proves he co-conspired(l)


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

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

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

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

from her Jericho.NY home] the "11-6-15" notice letter mailed by of for Deputy ClerkWard -delivered

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

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

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

when this courtjocated in City of Houston at Harris County.TXopens for business with other courts
UNTIL PARMA UNEXPECTEDLY NOTIFIES MOVANT OTHERWISE/THESE MOTIONS ARE"DEEMED OPPOSED"


                                                                  .Dov K. Avni -pro-se party in #14-14-00410-cv
                                                                       150-B Forest Drive, Jericho, NY 11753
                                                                       Cell# 516-318-3791 E-Mail: dovduba1@aol.com



                                     CERTIFICATE OF MAILING

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

          2.    NICHOLASA.PARMA - at SHERER &ASSOCIATES 11120 WURZBACH RD. 3100,San AntonioTX
                78130-by PRIORITY US Mail, CM/RRR#                                                    [mailed 11-25-15)

          2^5 JUDICIAL OFFICIALS LISTED IN 8-27-15 'OPINION DISTRIBUTE LIST'-EXCLUDING Hon.MICHAEL D.MILLER
                (DURING PENDENCY OF PERMANENT INJUNCTION HE ISSUED ON 3-31-14 IN #1997-40590/11JDC]


                TO BE MAILED FIRST CLASS WITH CERTIFICATES OF MAILING MONDAY.11-30-15 TOGETHER
                WITH 1st SUPPLEMENT TO THIS MOTION+AFFIDAVIT -BUT EXCLUDING THE CASE EXHIBITS
               •INASMUCH AS NONE OF THEM EXHIBITED ANY INTEREST IN LEARNING THE ACTUAL FACTSf!)

                                                                                  DOV K. AVNI- PRO-SE MOVANT



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

DOV AVNI KAMINETZKY a/k/a DOV K. AVNI                  )(
                                             Appellant )(
                              v.                       )(
DOSOHS I, LTD,                                         )(
                                             Appellee )(
[APPEAL of 5-15-14 FROM #1997-40590/11 JDC;HARRIS COUNTY.TX




                       EXHIBIT No. " -

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

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


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


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

           DEFRAUDED MOVANT. OR TREAT IT AS ORIGINAL PROCEEDING-

          TO BE DECIDED, IF NEEDED-BY MANDAMUS to TX SUPREME COURT
Case Detail                                                                                                         Page 1 of6




  CASE:              14-14-00410-CV
  DATE FILED:        05/28/2014



  CASE TYPE:         UNKNOWN CIVIL CASE TYPE.


  STYLE:             DOV AVNI KAMINETZKY



  V.:                DOSOHS I, LTD


  ORIG PROC:         NO



  TRANSFER FROM:



  TRANSFER IN:



  TRANSFER CASE:


  TRANSFER TO:



  TRANSFER OUT:


  PUB SERVICE:       WWW.14THCOA.COURTS.STATE.TX.US




APPELLATE BRIEFS



        Date         Event Type                                     Description         Document

                                                                                        BRIEF                 [ PDF/9.22 MB ]
        02/18/2015   Brieffiled - oral argument requested           Appellant
                                                                                        NOTICE                [ PDF/92 KB1




CASE EVENTS



        Date                Event Type                Description      Disposition                 Document

        11/06/2015          Case stored

                                                                                                                   t PDF/61
                                                                                                   BILL OF COST
                                                                                                                   KB]

                                                                                                                   [ PDF/42
        11/06/2015          Mandate issued            Civil                                         MANDATE
                                                                                                                   KB|

                                                                                                                   CPDF/103
                                                                                                                   KB]


                            Mandate due to be
        11/05/2015
                            issued

                            Motion for rehearing
        10/26/2015
                            was not filed

                            Motion for rehearing
        10/26/2015
                            due

                            Motion for extension of
                                                                       GRANTED IN PART AND                           [PDF/90
        10/15/2015          time to file motion for   Appellant                                                      KB]
                                                                       DENIED IN PART
                            rehearing disposed
                            Supplemental clerks                                                                      [PDF/90
        10/13/2015                                    Appellant                                                      KB]
                            record filed




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



   Date            1 Event Type                 1 Description         J Disposition         j Document
                   ; Petition for review due
   10/12/2015
                     in Supreme Court
                                                                      \- -    -- -
                     Motion for extension of
                                                                                                               [ PDF/8.53
   09/30/2015      • time to file motion for     i Appellant                                      MOTION
                                                                                                               MB]
                     rehearing filed
                     Motion for extension of ;
                                                                                                               [PDF/533
   09/28/2015        tinie to file motion for          Appellant                                               MB]
                     rehearing filed
                     Motion for rehearing
   09/11/2015
                     was not filed

                     Motion for rehearing
   09/11/2015
                     due

                                                                                                               [ PDF/2.16
   09/04/2015        Letter filed                      Appellant                                  LETTER
                                                                                                               MB]


                                                                                                                [ PDF/69
                                                                                                                KB]

                                                                                                  MEMORANDUM    [ PDFA33
   08/27/2015                                                         i DISMISSED                 OPINION       MB]
                   : issued
                                                                                                                [ PDF/93
                                                                                                  NOTICE
                                                                                                                KB]


                     Motion to dismiss
   08/27/2015                                       : Appellee        ; GRANTED
                    ' disposed
                    : Motion to dismiss
   08/27/2015                                     • Appellee          i GRANTED
                    ; disposed

   08/26/2015       : Submitted

   08/26/2015       I Case ready to be set      J               ...
   08/17/2015        Response due
                                                                                                                 [ PDF/84
   08/05/2015       j Motion to dismiss filed       i Appellee                                    MOTION
                                                                                                                 KB]
                                                                      ;—-       ---•

                                                                                                                 [PDF/89
   08/05/2015        Notice of late brief               Appellant                                 NOTICE
                                                                                                                 KB]


   07/23/2015       • Appellants brief due
                                                •':.
                                                                                                                 [PDF/88
    07/03/2015       Case reinstated                                                              NOTICE
                                                                                                                 KB]


                    ; Supplemental clerks                                                                        [PDF/90
    07/02/2015                                      1 Appellant                                   NOTICE
                                                                                                                 KB]
                    ; record filed
    06/29/2015      • Hearing record due
                    { Supplemental clerks
    06/29/2015                                                                              4
                    \ record due

                    s Supplemental clerks                                                                        [PDF/90
    06/03/2015                                         ; Appellant                                               KB]
                      record filed

                                                                                                                 [PDF/89
    05/07/2015        Motion disposed                  t Appellant    \ GRANTED                   NOTICE
                                                                                                                 KB]
                                                                                       _^   .•!

                                                                                                                [PDF/94
                                                                                                  ORDER
                                                                                                                KB]
    05/07/2015      i Order issued                                      ABATED
                                                                                                                [ PDF/102
                                                                                                  NOTICE
                                                                                                                KB]


                                                                                                                 [PDF/81
    05/01/2015      > Response filed                   ; Appellee                                                KB]


    05/01/2015      : Response due
                                                                                                                [ PDFA^2
    04/20/2015      ' Motion filed                     i Appellant                                              MB]




 http://www.search.txcoiirts.gov/Case.aspx?cn=14-14-00410-CV&coa=coal4                                            11/25/2015
Case Detail                                                                                Page 3 of6


   Date              Event Type                   Description   Disposition   Document

   04/16/2015        Notice of late brief        Appellee                                  [ PDF/90
                                                                                           KB)

   04/10/2015        Amended brief due

   03/21/2015        Appellees brief due

                                                                                           [ PDF/86
                                                                                           KB]
   03/12/2015        Order entered
                                                                                           [ PDF/91
                                                                                           KB]


   03/09/2015        Response filed              Appellant                    RESPONSE
                                                                                         [PDFA.06
                                                                                         MB]


   02/25/2015        Letter filed                                             LETTER
                                                                                          [ PDF/160
                                                                                          KB]


   02/24/2015
                     Supplemental clerks                                                   [PDF/90
                     record filed                Appellant                    NOTICE
                                                                                           KB]


   02/23/2015        Motion to dismissfiled     •; Appellee                   MOTION
                                                                                           [PDF/83
                                                                                           KB]


                                                                                         [ PDF/9.22
                                                                              BRIEF
                     Brief filed - oral                                                  MB]
   02/18/2015                                    Appellant
                     argument requested                                                  [ PDF/92
                                                                              NOTICE
                                                                                         KB]

   02/12/2015        Appellants brief due

   02/06/2015        Letterfiled                ; Appellant                   LETTER
                                                                                         (PDF/7.91
                                                                                         MB]


   02/02/2015        Letter filed               ) Appellant                   LETTER
                                                                                         [ PDF/5.68
                                                                                         MB]


                                                                                           [PDF/88
                                                                              ORDER
                                                                                           KB]
   01/29/2015        Order entered
                                                                                           I PDF/91
                                                                              NOTICE
                                                                                           KB]

                     Motion for extension of j
   01/29/2015        time to file brief                         DENIED
                     disposed
                     Reply to response or                                                [ PDF/1.26
   01/27/2015                                    Appellant
                     motion filed                                                        MB]


   01/26/2015      : Response filed                                                      [PDF/391
                                                 Appellee
                                                                                         KB]

                   ! Motion for extension of                                             [ PDF/1.63
   01/20/2015                                    Appellant
                   ; time to file brief filed                                            MB]

   01/05/2015      r Appellants brief due

                   j Motion for extension of
   12/23/2014                                                                             [ PDF/98
                   ; time to file brief          Appellant      GRANTED
                                                                                          KB]
                   \ disposed
   12/22/2014      \ Letter filed                Appellant                    LETTER
                                                                                         [ PDF/561
                                                                                         KB]

                   . Motion for extension of                                             [ PDF/1.71
   12/16/2014                                    Appellant
                   . time to file brief filed                                            MB]


   12/05/2014
                   \ Supplemental clerks
                   J record due

                    Supplemental clerks                                                   [PDF/90
   12/04/2014                                    Appellant
                    record filed                                                          KB]

   12/01/2014      / Appellants brief due

   11/26/2014      ', Letter filed                                                       [PDF/5.40
                                                 Appellant                    LETTER
                                                                                         MB]




http://www.search.txcourts.gov/Case.aspx?cn=l4-14-00410-CV&coa=coal4                      11/25/2015
Case Detail                                                                                          Page 4 of6


   Date             Event Type                   Description       Disposition      Document

                    Extension of time to file                                                        [PDF/96
   11/26/2014                                    District Clerk    GRANTED
                    clerks record disposed                                                           KB]


                    Extension of time to file                                                        [ PDF/48
   11/25/2014                                    District Clerk                     EXTENSION
                    clerks record filed                                                              KB]



   10/28/2014                                                                                      [ PDF/1023
                    Letter filed                 Appellant
                                                                                                   MB]


                                                                                                     [ PDF/81
                                                                                                     KB]
   10/28/2014       Order entered
                                                                                                     [ PDF/91
                                                                                     NOTICE
                                                                                                     KB]

   10/13/2014       Appellants brief due

                    Motion for extension of
   09/11/2014                                                                                        [ PDF/91
                    time to file notice of       Appellant         DENIED AS MOOT
                                                                                                     KB]
                    appeal disposed
   09/11/2014       Clerks record due             District Clerk


   09/04/2014                                                                                       [ PDF/106
                    Clerks record filed         ; Appellant                          NOTICE
                                                                                                    KB]


   08/27/2014                                                                                        [PDF/94
                    Notice of late record       ! District Clerk
                                                                                                     KB]

   08/20/2014       Clerks record due             District Clerk

   08/18/2014       Clerks record due           ; District Clerk


   08/12/2014                                                                                       [ PDF/8.36
                    Letter filed                : Appellant
                                                                                                    MB]


                                                                                                    [PDF/135
   08/12/2014       Letter filed                J Appellant                                         MB]

                    Extension of time to file                                                        [ PDF/95
   08/08/2014                                     District Clerk   GRANTED
                    clerks record disposed                                                           KB]

                    Extension of time to file                                                        [ PDF/49
   08/06/2014                                     District Clerk                    EXTENSION
                    clerks record filed                                                              KB]


                                                                                                     [PDF/94
   08/05/2014       Notice of late record         District Clerk
                                                                                                     KB)

   07/29/2014       Clerks record due

   07/29/2014       Record due

                    Docketing statement                                              DOCKETING     [ PDF/6.66
   06/20/2014                                    Appellant                          STATEMENT       MB]
                    filed

                    Docketing statement
   06/12/2014                                    Appellant
                    due

                    Mediation docketing
   06/12/2014                                    Appellee
                    statement due


                                                                                     MEDIATION
                    Mediation docketing                                                             [PDFA96
   06/10/2014                                    Appellee                            DOCKETING
                                                                                                    KB)
                    statement returned                                              STATEMENT



   06/09/2014       Court fee due                Appellant
   06/05/2014       Fee paid                     Appellant
                    Notification received
   05/29/2014       that no record was
                    taken

                    Court reporters notice                                          COURT
                                                                                     REPORTER'S     [PDF/120
   05/29/2014       to court regarding           Court Reporter                      INFORMATION    KB ]
                    status of record                                                SHEET




http://www.search.txcourts.gov/Case.aspx?cn==14-14-00410-CV&coa=coal4                                 11/25/2015
Case Detail                                                                                                            Page 5 of6



  { Date                   Event Type                    Description      Disposition                  Document

                           Court reporters                                                                            [ PDF/100
   05/28/2014                                            Court Reporter                                               KB]
                           information sheet sent

                           Letter issued by the                                                                        [ PDF/92
   05/28/2014                                            Court Reporter                                                KB)
                           court

                           Letter issued by the                                                                        [ PDF/92
   05/28/2014                                            Both parties                                                  KB]
                           court

                           Case began in court of                                                       LETTER OF     [PDF/158
   05/28/2014                                                                                           ASSIGNMENT    MB ]
                           appeals
                           Motion for extension of
                                                                                                                      [ PDF/631
    05/16/2014             time to file notice of        Appellant                                                    MB]
                           appeal filed

                           Notice of appeal filed in
    05/15/2014
                           trial court

                           Request for findings of
    04/19/2014             fact and conclusions of
                           law

                           Judgment signed by
    03/31/2014
                           trial court judge




CALENDARS



    Set Date                                    Calendar Type                      Reason Set

    11/06/2015                                  Case Stored                        Case stored

                                                                                   Date civil case will be destroyed (6 yrs
    11/08/2021                                  Retention
                                                                                   after mandate)




PARTIES



    Party                                       PartyType                          Representative

    Kaminetzky, Dov Avni                        Appellant                          Dov Avni Kaminetzky

                                                                                   Eric David Sherer
    Dosohs I, LTD                               Appellee
                                                                                   Nicholas Arthur Parma




TRIAL COURT INFORMATION



  COURT:                           11TH DISTRICT COURT



   COUNTY:                         HARRIS



   COURT JUDGE:                    HONORABLE JUDGE. 11TH DISTRICT COURT


   COURT CASE:                     1997-40590



   COURT REPORTER:                 TERRI ANDERSON


   PUNISHMENT:




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




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

DOV AVNI KAMINETZKY a/k/a DOV K. AVNI                    )(
                                             Appellant   )(
                              v.                         )(
DOSOHS I, LTD,                                           )(
                                             Appellee    )(
[APPEAL of 5-15-14 FROM #1997^0590/11 JDC;HARRIS COUNTY.TX



                       EXHIBIT No. "3 "
          TO APPELLANT'S ORIGINAL MOTION [ of 11-25-15 ]TO RECALL

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

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

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

           DEFRAUDED MOVANT. OR TREAT IT AS ORIGINAL PROCEEDING-

          TO BE DECIDED. IF NEEDED-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

                                     11/05/2015
               -


    10/05/201!

                                    | 11/04/2015
                                     11/03/2015

    10/02/2015                       11/02/2015

    10/01/2015




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

DOV AVNI KAMINETZKY a/k/a DOV K. AVNI                  )(
                                             Appellant )(
                              v.                       )(
DOSOHS I, LTD,                                         )(
                                             Appellee )(
[APPEAL of 5-15-14 FROM #1997-40590/11 JDC;HARRIS COUNTY.TX




                       EXHIBIT No. " k "
          TO APPELLANT'S ORIGINAL MOTION [of 11-25-15 ]TO RECALL

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

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


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

           DEFRAUDED MOVANT, OR TREAT IT AS ORIGINAL PROCEEDING-

          TO BE DECIDED, IF NEEDED-BY MANDAMUS to TX SUPREME COURT
Released Opinions                                                                                                                           Page 1 of 3




RELEASED ORDERS & OPINIONS FOR 10/15/2015




  Civil Causes Decided

   Case Number                Style                                                       Disposition             Judges
   14-14-00201-CV                          '                                      i                           '
                              Houston Methodist San Jacinto Hospital v. Ten               nn.i-r.rr-r. A.m.   1 Justice Jamison
    Opinion by                ,   .                                 r             I REVERSED AND                  . ..     .. _ „
    Justice         [PDF]
                              Ford                                                [ RrMnrCrn                      Justice McCally
    McCally
                              Appeal from 295th District Court ofHarris County    j                           1Justice Wise
                                                                                  j                           J
   14-14-00408-CV
                              Giovanny Laguan v. R.D. Parikh                      |                           §Justice Boyce
    Memorandum
                              Appeal from County Court at Law #4 of Fort Bend     j DISMISSED                 j Justice Busby
    Opinion Per     [PDF]
    Curiam
                              County                                              j                           I Justice Brown
                                                                                  1                           |
                              Texas Transportation Commission and Ted
   14-14-00823-CV             Houghton, in his Official Capacity as Chair of                                      Chief Justice Frost
                                                                                      REVERSED AND
    Opinion by                the Texas Transportation Commission v. City of                                      Justice Boyce
                                                                                      RENDERED
    Justice Boyce             Jersey Village                                                                      Justice McCally
                              Appeal from 165th District Court of Harris County

   14-14-00823-CV             Texas Transportation Commission and Ted
    Concurring                Houghton, in his Official Capacity as Chair of                                      Chief Justice Frost
    Opinion by                the Texas Transportation Commission v. City of          CONCURRING                  Justice Boyce
    Chief Justice             Jersey Village                                                                      Justice McCally
    Frost                     Appeal from 165th District Court of Harris County
   14-14-01007-CV             Thomas Beets and Leslie Beets v. National
                                                                                                                  Justice Boyce
    Memorandum                Collegiate Student Loan Trust 2005-2
                                                                                      DISMISSED                   Justice Busby
    Opinion Per     [PDF]     Appeal from 344th District Court of Chambers
                                                                                                                  Justice Brown
    Curiam                    County

   14-15-00686-CV
                              Margnus Ibe v. Pennymac Loan Services, LLC                                          Chief Justice Frost
    Memorandum
    Opinion Per     [ PDF ]
                              Appeal from County Court at Law No 1 of Fort            DISMISSED                   Justice Christopher   j
    Curiam
                              Bend County                                                                         Justice Donovan       1


  Civil Orders

   Case Number                Style                                                       Disposition             Judges

                              Remote Control Hobbies L.LC. A/K/A and
                              D/B/A Remote Control Hobbies v. Airborne
   14-12-01088-CV             Freight Corporation D/B/A Airborne Express
    Order           [ PDF ]   Successor by Merger to DHL Express
                              Appeal from Co CivilCt at Law No 1 of Harris
                              County

   14-14-00257-CV
                              Hugh Forrest v. Technical and General Guaranty
                              Co., S.A.
    Order           [ PDF ]
                              Appeal from 165th District Court of Harris County

   14-15-00279-CV
                              Loren Rose Jeremy v. Nicholas Dusan Jeremy              "




                              Appeal from 306th District Court of Galveston
    Order           [ PDF ]
                              County
   14-15-00320-CV             Thomas R. Wright v. PlainsCapital Bank
    Order           [ PDF ]   Appeal from 295th District Court of Harris County
                                                                                                              1
                              Uwakwe C. Oko and Victoria L Oko v. Tony Ali,                                   1
   14-15-00505-CV             Junior Properties and Everbank                                                  1

    Order           [PDF]     Appeal from 400th DistrictCourt of Fort Bend                                    i
                              County                                                                          !
                              William Satterwhite, Jr. v. Christopher Evans                                   i
   14-15-00699-CV             and Yi Zhang
    Order           [PDF]     Appeal from Co Civil Ct at LawNo 2 of Harris
                                                                                                              1
                                                                                                              1
                              County                                                                          1


   14-15-00763-CV             Estate of Linda Kuebler Hinkley, Deceased
    Order           [ PDF ]   Appeal from Probate Court of Galveston County




http://www.search.txcourts.gov/Docket.aspx?coa=coal4&FullDate=10/15/2015                                                                    10/26/2015
Released Opinions                                                                                                                                  Page 2 of 3


    Case Number                1 Style                                                     Disposition          1Judges
    14-15-00785-CV             » ^verbankv. SeedergyVentures, Inc., a                                           !                              I
                                                                                                                S                              1
                     rPDFl 1CorPorat'on                                                    ABATED                                              |
                               j Appeal from 190th District Court of Harris County                       ____™_i_______ .
                                                                                                               j                          '__J
                                                                                                                                           •••—'
    14-15 00864-CV             j in the Interest ofaiM.S., Child
     Order           [ PDF ]       Appeal from 314th District Court of Harris County


  Criminal Causes Decided

   Case Number                     Style                                                   Disposition              Judges
   14-14-00272-CR                  Jeremy Patrick Shakesnider v. The State of
                                                                                                                    Chief Justice Frost
     Opinion by                    Texas
                                                                                           AFFIRMED                 Justice Christopher
     Chief Justice   [PDF]         Appeal from 400th District Court of Fort Bend
                                                                                                                    Justice Donovan
     Frost                         County

   14-14-00421-CR
                                   Rebecca Victoria Humaran v. The State of Texas                                   Justice Christopher
     Opinion by
                                   Appeal from 239th District Court of Brazoria            AFFIRMED                 Justice Donovan
     Justice         [PDF]
                                   County                                                                           Guiney
     Christopher

    14-14-00682-CR
                                   Troy Lee Bridges v. The State of Texas                                           Justice Boyce
     Memorandum
                                   Appeal from 344th District Court of Chambers            AFFIRMED                 Justice Busby
     Opinion by      [PDF]
                                   County                                                                           Justice Brown
     Justice Brown


   14-14-00688-CR
                                   Gary Martins v. The State of Texas
                                                                                                                    Justice Boyce              |
     Memorandum
                                                                                           AFFIRMED                 Justice Busby              |
     Opinion by      [PDF]         Appeal from 176th District Court of HarrisCounty
     Justice Brown
                                                                                                                    Justice Brown              j
                                                                                                 . ,          ._J
   14-14-00847-CR
                                   Carlos A. Arias v. The State of Texas                                            Chief Justice Frost
     Opinion by
                                   Appeal from Co Crim Ct at Law No 13 of Harris           AFFIRMED                 Justice Jamison
     Justice         [PDF]
                                   County                                                                           Justice Busby
     Jamison


   14-15-00647-CR
                                                                                                                    Justice Boyce
     Memorandum                    William Charles Wingate v. The State of Texas
                                                                                           DISMISSED                Justice Busby
     Opinion Per     [ PDF ]       Appeal from 232nd District Court of Harris County
                                                                                                                    Justice Brown
     Curiam


    14-15-00665-CR                                                                                              1
                                                                                                                    Chief Justice Frost
     Memorandum                    Miyaggi Aleman v. The State of Texas
                                                                                           DISMISSED                Justice Christopher
     Opinion Per     [ PDF ]       Appeal from 174th DistrictCourt of HarrisCounty
                                                                                                                    Justice Donovan
     Curiam




  Criminal Orders

   Case Number                     Style                                                   Disposition              Judges
                               \                                                       i
   14-14-01011-CR                  Margaret Renee Mayerv. The State of Texas           1
     Order           [PDF]     1 Appeal from 230th District Court of Harris County     j
                               '                                                       I
   14-15-00256-CR              jUlessia Procter v. The State of Texas
     Order           [PDF] j Appeal from 208th District Court of Harris County 1
                                                                                                                                 .    _       J
                                   Lashonda Deon Jones v. The State of Texas
   14-15-00300-CR                  Appeal from 221st District Court of Montgomery
                                   County

                                   Lashonda Deon Jones v. The State of Texas
   14-15-00301-CR                  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]       J™'
                               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                                                                           10/26/2015
Released Opinions                                                           Page 3 of 3




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

DOV AVNI KAMINETZKY a/k/a DOV K. AVNI                           )(
                                                    Appellant   )(
                              v.                                )(
DOSOHS I, LTD,                                                  )(
                                                    Appellee    )(
[APPEAL of 5-15-14 FROM #1997^0590/11 JDC;HARRIS COUNTY.TX



                                      ((   *v   «
                      EXHIBIT No.

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

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

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

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

           DEFRAUDED MOVANT. OR TREAT IT AS ORIGINAL PROCEEDING-

          TO BE DECIDED. IF NEEDED-BY MANDAMUS to TX SUPREME COURT
Released Opinions                                                                                                                                  Page 1 of 3




RELEASED ORDERS & OPINIONS FOR 08/27/2015




  Civil Causes Decided

   Case Number                     Style                                                   Disposition             Judges

   14-13-00094-CV                  James Stearns v. Lisa Martens and Steams Pools
                                                                                           AFFIRMED IN PART        Chief Justice Frost
    Opinion by                     and Spas, Inc.
                                                                                           AND REVERSED AND        Justice Christopher
                                   Appeal from 268th District Court of Fort Bend
    Chief Justice
    Frost
                    [PDF]
                                   County
                                                                                           REMANDED IN PART       jJustice Busby
   14-13-00988-CV

    Memorandum                     T.C.M.A. Trucking, Inc. v. Mario Cisneros and                              J Chief Justice Frost
    Opinion by                     Felix A. Auz                                            AFFIRMED           jJustice Boyce
    Chief Justice                  Appeal from 165th District Court of Harris County                          I Justice McCally
    Frost

                                                                                                              j
   14-13-00989-CV             1
                                                                                           AFFIRMED IN PART        Chief Justice Frost
    Opinion by                i Felix A. Auz v. Mario Cisneros
    Chief Justice   [PDF] j Appeal from 165th District Court ofHarris County               AND REVERSED AND   | Justice Boyce
    Frost                     i
                                                                                           REMANDED IN PART        Justice McCally

   14-13-00989-CV             j
    Concurring                {Felix A. Auz v. Mario Cisneros                                                 {Chief Justice Frost
    Opinion by      [PDF] j Appeal from 165th District Court of Harris County              CONCURRING         jJustice Boyce
    Justice Boyce             |
                                                                                                              | Justice McCally
                                                                                       __       __            J
   14-14-00137-CV
                                                                                                                   Justice Christopher
    Memorandum                     Dominic Marrocco v. Mark Hill                       j REVERSED AND              Justice Donovan
    Opinion by      [ PDF ]        Appeal from 164th District Court ofHarris County    ] RENDERED                  Justice Wise
    Justice Wise
                                                                                       j
   14-14-00172-CV                  Katy Springs &Manufacturing, Inc. v.Joseph              AFFIRMED AS             Justice Boyce
    Opinion by                     Favalora                                            1M0DIFIED                   Justice Brown               1
    Justice Brown                  Appeal from 133rd District Court of Harris County   j                           Justice Wise

   14-14-00410-CV
                                                                                                                   Justice Boyce
                                   Dov Avni Kaminetzky v. Dosohs I, LTD
    Memorandum
    Opinion" Per    [PDF]          Appeal from 11th District Court of Harris County
                                                                                           DISMISSED          jJustice Busby
    Curiam
                                                                                                              j Justice Brown

   14-14-00462-CV
                                  The State of Texas v. Treeline Partners, LTD., a
                                   Texas Limited Partnership, Laroca Partners U,
                                                                                                              !
    Opinion by                     LTD., a Texas Limited Partnership and CBS               REVERSED AND            Justice Christopher
    Justice         [PDF]          Outdoor, Inc., a Delaware Corporation                   REMANDED                 "TuT
                                                                                                              | Justice Wise
    Christopher                    Appeal from Co Civil Ct at Law No 3 of Harris
                                  vCounty

   14-14-00768-CV             j                                                                                    Justice Christopher
    Memorandum                j In the Interest of O.Z.O
                                                                                           AFFIRMED                Justice Brown
    Opinion by      [PDF]     j Appeal from 257th District Court of Harris County
                                                                                                                   Justice Wise
    Justice Brown             j
                                                                                                                                               1
   14-14-00930-CV
                                                                                                                   Justice Christopher
    Opinion by                | Ex Parte Brett Scott                                       AFFIRMED                Justice Brown
    Justice         [PDF ] j Appeal from 164th District Court of Harris County                                     Justice Wise
    Christopher               |
                                                                                                                                         .,   _J
   14-15-00026-CV
                                   DCR Mortgage III Sub I, LLCv. Lawrence C.                                       Chief Justice Frost
    Memorandum
                                   Math is                                                 DISMISSED               Justice Christopher
    Opinion Per     [ PDF ]
                                   Appeal from 126th DistrictCourt of Travis County                                Justice Donovan
    Curiam


   14-15-00101-CV                  Ricardo G. Cedillo, Jason C. Zehner, J. Russell
                                                                                                                   Justice Boyce
    Opinion by                     Davis and Davis, Cedillo & Mendoza, Inc. v.             REVERSED AND
                                                                                                                   Justice McCally
    Justice         [PDF]          Immobiliere Jeuness Establishment                       REMANDED
                                                                                                                   Justice Donovan
    McCally                        Appeal from 215th District Court of Harris County
   14-15-00556-CV
                                                                                                                   Justice Boyce
    Memorandum                    In Re Christopher Spates
                                                                                           DENIED                  Justice McCally
    Opinion Per     [PDF]         Appeal from 312th DistrictCourt of HarrisCounty
                                                                                                                   Justice Donovan
    Curiam




http://www. search.txcourts.gov/Docket.aspx?coa=coa14&FullDate=08/27/2015                                                                            9/3/2015
Released Opinions                                                                                                                                Page 2 of 3


   Case Number                     Style                                                      Disposition        Judges
   14-15-00568-CV              j                                                          j                      Justice Christopher
    Memorandum                 jIn Re Jinsun LLC                                          I GRANTED              Justice Brown
     Opinion by      [PDF] j Appeal from 113th District Court of Harris County 1                                 Justice Wise
    Justice Brown              1                                                          1

   14-15-00650-CV
                                                                                                                 Chief Justice Frost
     Memorandum                    In Re Colleen Roberts, etal                            j                      Justice Christopher
     Opinion Per     [ PDF ]       Appeal from 152nd District Court of Harris County
                                                                                                                 Justice Jamison
     Curiam
                                                                                          |
   14-15-00692-CV                  Shahem Barazi, The Black Stone Builder, Inc.,          |                      Chief Justice Frost
     Memorandum                    andTheBlack Stone Management, Inc. v. Zuher ) „„.,,„.,__
                                   _ ,   .                                                                       Justice Christopher
    Opinion Per      [ PDF ]       Salameh                                     J1 DISMISSED
                                                                                                                 Justice Donovan
    Curiam                         Appeal from 295th District Court ofHarris County       I
                                                                                                                ....   -               ..... i
   14-15-00713-CV              |                                                                            j Justice Boyce
     Memorandum                j In re J. Womack                                              DISMISSED     | Justice Busby
    Opinion Per      [PDF ] | Appeal from ... of Galveston County
                                                                                                                 Justice Brown
    Curiam                     j


  Civil Orders

   Case Number                     Style                                                      Disposition        Judges
                                   James Stearns v. Lisa Martens and Stearns Pools
   14-13-00094-CV                  and Spas, Inc.
    Order            [ PDF ]       Appeal from 268th District Court of Fort Bend          i
                                   County

   14-14-00865-CV
                                   Coreslab Structures (Texas), Inc. v. Scottsdale        |
    Order            [ PDF ]
                                   Insurance Company                                      I ABATED
                                   Appeal from 55th District Court of Harris County       j
   14-15-00654-CV                  Logan Young v. Choice Refined Products, LLC
    Order            [ PDF ]       Appeal from 295th District Court of Harris County

                                   Connie Range, Trustee ofthe Martha Range               f                 j                                j
   14-15-00672-CV
                                   Trust d/b/a Reliant Engineering and Machine,           £                 •                                I
    Order            [ PDF ]
                                   US and Samuel Range v. Calvary Christian               | ABATED          I                                !
                                   Fellowship                                             I                 1                                J
                                   Appeal from 234th District Court of Harris County ;                      i                                1

  Criminal Causes Decided

   Case Number                     Style                                                      Disposition        Judges
   14-14-00142-CR              j                                                                                 Chief Justice Frost
                               j Robelio Aviles-Barroso v. The State of Texas                 AFFIRMED AS
                                                                                                                 Justice Boyce
      pinion y       [PDF]         Appeal from 337th District Court of Harris County          MODIFIED
    Justice Boyce              | Tr                                                   '                          Justice McCally

   14-14-00142-CR              j
    Concurring
    Opinion by
                               j Robelio.from
                               , .
                                           Aviles-Barroso  v. The State of Texas
                                               33?th District Qoun ofHarrjs County            CONCURRING
                                                                                                                 Chief Justice Frost
                                                                                                                 Justice Boyce
    ChiefJustice               1                                                                                 Justice McCally             i
    Frost                      !
                               1                                                          j                                                  i
   14-14-00473-CR              j
    Memorandum                 j Jimmy Earl van-Cleave v.The State ofTexas                                       Justice Boyce
                                                                                              AFFIRMED           Justice McCally
    Opimonby
    Justice
                               j Appeal
                                  Tr
                                        from 179th District Court of Harris County'
                                                                                                                 Justice Donovan
    Donovan                    j

   14-14-00514-CR              j
                               1 PaulWayne Harrisv. The State of Texas                                           Chief Justice Frost
    Memorandum                 j^          ,frQm 26gth Djstrjct Court of fon Bend             AFFIRMED           Justice Jamison
    Opinion by       [PDF]     j J^r
   - , *• „ \.                 %County                                                                           Justice Busby
     Justice Busby             f     '

   14-14-00607-CR

    Memorandum                                                                                                   Chief Justice Frost
                                   Brandon Ray Morgan v. The State of Texas
    Opinion by                                                                                AFFIRMED           Justice Jamison
                                   Appeal from 338th DistrictCourt of HarrisCounty
    Chief Justice                                                                                                Visiting Judge Yates
    Frost




http://www.search.txcourts.gov/Docket.aspx?.coa=coal4&FullDate=08/27/2015                                                                          9/3/2015
Released Opinions                                                                                                                          Page 3 of 3


      Case Number                    Style                                               I Disposition           Judges
      14-14-00781-CR
                                     Ex Parte Juan Raul Rojas v. The State of Texas                              Chief Justice Frost
       Memorandum
                                     Appeal from Co Crim Ct at Law No 15 of Harris       J AFFIRMED              Justice Boyce
       Opinion by      [ PDF ]
                                     County                                                                      Justice McCally
       Justice Boyce

      14-14-00835-CR

       Memorandum                    Ex Parte Chidiebele Gabriel Okonkwo                                         Chief Justice Frost
       Opinion by                    Appeal from 434th Judicial District Court of Fort       AFFIRMED            Justice Jamison
                       [PDF]
       Chief Justice                 Bend County                                                                 Justice Busby
       Frost

                                 I
      14-14-00943-CR

       Memorandum                j David Sidney McKeand v.The State ofTexas                                      Chief Justice Frost
       Opinion by
                       [PDF]
                                 | Appeal from Co Crim Ct at Law No 7 of Harris          | AFFIRMED         | Justice Jamison
       Chief Justice             j County                                                I                  j Justice Busby
       Frost


      14-15-00314-CR
                                                                                                              Justice Boyce
       Memorandum                    Ronnie Thibodeaux v. The State of Texas
                                                                                             AFFIRMED         Justice Busby
       Opinion Per     [PDF]         Appeal from Crim Dist Ct of Jefferson County
       Curiam
                                                                                                            I Justice Brown

      14-15-00315-CR
                                                                                                                 Justice Boyce
       Memorandum                    Ronnie Thibodeaux v. The State of Texas
                                                                                             AFFIRMED           I Justice Busby
       Opinion Per     [ PDF ]       Appeal from Crim Dist Ct of Jefferson County
                                                                                                                 Justice Brown
       Curiam


      14-15-00316-CR
                                                                                                                 Justice Boyce
       Memorandum                    Ronnie Thibodeaux v. The State of Texas
                                                                                             AFFIRMED            Justice Busby
       Opinion Per     [ PDF ]       Appeal from Crim Dist Ct of Jefferson County
                                                                                                                 Justice Brown
       Curiam


      14-15-00594-CR
                                                                                                            1Justice Christopher
       Memorandum                    In Re James Thomas Green
                                                                                             DENIED              Justice Brown
       Opinion Per     [PDF]         Appeal from 248th District Court of Harris County
                                                                                                                 Justice Wise
       Curiam


      14-15-00700-CR
                                                                                                                 Justice Jamison
       Memorandum                    In Re Princella V. Ross-Steels
                                                                                             DENIED              Justice McCally
       Opinion Per     [PDF]         Appeal from 263rd DistrictCourt of Harris County
                                                                                                                 Justice Wise
       Curiam


      14-15-00712-CR
                                 j In re Ricky Dean Fowler                                                       Chief Justice Frost
       Memorandum
                                 I Appeal from County Court at Law No 1 of                   DISMISSED           Justice Christopher
       Opinion Per     [PDF]
       Curiam
                                 j Galveston County                                                              Justice Donovan




  Criminal Orders

      Case Number                    Style                                                   Disposition         Judges
                                     Daniel Cruz v. The State of Texas
      14-14-00908-CR
                                     Appeal from 268th District Court of Fort Bend           ABATED
       Order           [ PDF ]
                                     County
                                                                                                                                       j
                                     Quincy Lee Johnson v. The State of Texas                                                          j
      14-15-00018-CR                                                                         ABATED
                                     Appeal from 208th District Court of Harris County
                                                                                         r            "    ~*
      14-15-00111-CR                 Leiroi Mickele Daniels v. The State of Texas
                                                                                             ABATED
       Order           [PDF] j Appeal from 230th District Court of Harris County
                                                                                                                                       1
                                 1 PastorIsreal Diaz-Bonillav. The State of Texas                                                      1
                                                                                             ABATED
                                 I Appeal from 182nd District Court ofHarris County
  "                         """ 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                                                                    9/3/2015
                 APPEAL No. 14-14-00410-CV

DOV AVNI KAMINETZKY a/k/a DOV K. AVNI                    )(
                                             Appellant   )(
                              v.                         )(
DOSOHS I, LTD,                                           )(
                                             Appellee    )(
[APPEAL of 5-15-14 FROM #1997-40590/11 JDC;HARRIS COUNTY.TX




                       EXHIBIT No  NO. " (p "
          TO APPELLANT'S ORIGINAL MOTION [of 11-25-15 ]TO RECALL

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

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

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

           DEFRAUDED MOVANT. OR TREAT IT AS ORIGINAL PROCEEDING-

          TO BE DECIDED. IF NEEDED-BY MANDAMUS to TX SUPREME COURT
                                                                      August 27, 2015




                                  JUDGMENT

                3ty£ iFourtmttlj Court of Appeals
                    DOV AVNI KAMINETZKY, Appellant
NO. 14-14-00410-CV                         V

                          DOSOHS I, LTD, Appellee


      Today the Court heard appellee's motion to dismiss the appeal from the
judgment signed by the court below on March 31, 2014. Having considered the
motion and found it meritorious, we order the appeal DISMISSED.
     We further order that all costs incurred by reason ofthis appeal be paid by
appellant, Dov Avni Kaminetzky.

     We further order this decision certified below for observance.




                                   ^
                 APPEAL No. 14-14-00410-CV

DOV AVNI KAMINETZKY a/k/a DOV K. AVNI                  )(
                                             Appellant )(
                              v.                       )(
DOSOHS I, LTD,                                         )(
                                             Appellee )(
[APPEAL of 5-15-14 FROM #1997-40590/11 JDC;HARRIS COUNTY.TX




                       EXHIBIT No. ""7 "
          TO APPELLANT'S ORIGINAL MOTION [ of 11-25-15 ]TO RECALL

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

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


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

           DEFRAUDED MOVANT. OR TREAT IT AS ORIGINAL PROCEEDING-

          TO BE DECIDED, IF NEEDED-BY MANDAMUS to TX SUPREME COURT
 Motion Granted; Appeal Dismissed and Memorandum Opinion filed August
 Z /, Zujl5.




                                     In The


                    Jftoitrtetttff Court o! Appeals

                              NO. 14-14-00410-CV


                   DOV AVNI KAMINETZKY, Appellant
                                       V.

                          DOSOHS I, LTD, Appellee

                    On Appeal from the 11th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1997-40590


                 MEMORANDUM                    OPINION


       This is an appeal from a judgment signed March 31, 2014. The clerk's
record was filed September 4, 2014. No reporter's record was taken. No brief has-
been filed.

      On March 12, 2015, this court issued an order stating that unless appellant
submitted a brief on or before April 10, 2015, the court would dismiss the appeal
for want of prosecution. 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 of Justices Boyce, Busby, and Brown.
                 APPEAL No. 14-14-00410-CV

DOV AVNI KAMINETZKY a/k/a DOV K. AVNI                  )(
                                             Appellant )(
                              v.                       )(
DOSOHS I, LTD,                                         )(
                                             Appellee )(
[APPEAL of 5-15-14 FROM #1997-40590/11 JDC;HARRIS COUNTY.TX




                       EXHIBIT No.    "/T"
          TO APPELLANT'S ORIGINAL MOTION [of 11-25-15 ]TO RECALL

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

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

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

           DEFRAUDED MOVANT. OR TREAT IT AS ORIGINAL PROCEEDING-

          TO BE DECIDED, IF NEEDED-BY MANDAMUS to TX SUPREME COURT
CMH HOMES v. Perez, 340 S.W.3d 444 - CourtListener.com                                                    Page 1 of 9




  Toggle navigation   Court ListenerCjL
    • About
    • FAQ
    • Tour
    • Coverage
    • Sign in / Register

© Back to Home Page

Your Notes

(edif) £

(none)

Cited By (106)

This opinion has been cited by these opinions:

    •   In Re Service Corp. Intern., 355 S.W.3d 655 (Tex. 2011)
    •   in Re Santander Consumer USA Inc., 01-12-00728-CV (Tex. App. 2013)
    •   in Re Santander Consumer USA Inc., 01-12-00728-CV (Tex. App. 2013)
    •   in Re D & KW Family, L.P.. 01-11-00276-CV (Tex. App. 2012)
    •   Cole Distribution, Inc., Cole Chemical & Distributing, Ind., Princess Properties ...

Full List of Citations ©


Authorities (31)

This opinion cites:

    •   950 Corbmdale v. Kotts Capital Holdings, 316 S.W.3d 191 (Tex. App. 2010)
    •   Acequip Ltd. v. American Engineering Corporation, 315 F.3d 151 (2d Cir. 2003)
    •   Amanda S. May v. Higbee Company, Doing Business as Dillard's ...
    •   Atsa of California. Inc., Plaintiff/cross-Claimant/appellant v. Continental Insurance Co.. Etc.
    • Badiga v. Lopez. 274 S.W.3d 681 (Tex. 2009)


Full Table of Authorities ©


View Original

From the court | Our backup

Share this Opinion

F3^ JJl Q- https://www.courtlistener.

Sponsored Links




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 2 of 9




     hiONTRdSE ,•*&
                SjSgf-,.1
     Motown
        4EHEIGHT
     *XM
          SEUMDIS.               itsa;

        sok?4k




                                         'ree Law Project, a federally-recognized 501(c)(3) non-profit. We rely heavily on donations
                                         turn off ads, we ask for a $10 donation each year.

        PREVIEW-PLANS;
       .••..'':-:.'AN0'P.RICES    :*



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 of 9



                           CMH HOMES, et al., Petitioners,
                                                              v. .
                                 Adam PEREZ, Respondent.
                                                         No. 10-0688. •


                                                  Supreme Court of Texas.

                                                  Argued February 3, 2011.
                                                   Decided May 27, 2011.

*446 Brendan K. McBride, The McBride Law Firm, Rio Grande City, David L. Rumley, Wigington Rumley Dunn LLP,
Corpus Christi, and Baldemar Gutierrez, Law Offices of Baldemar Gutierrez, Alice, for Adam Perez.

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

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

Justice WAINWRIGHT delivered the opinion of the Court.

Once more, this Court is presented with a question of the availability of judicial review of an interlocutory arbitration order.
In this consumer dispute, CMH Homes, Inc. and Adam Perez agreed to submit their claims to arbitration but could not
agree on an arbitrator. Because of this disagreement, the trial judge intervened and appointed an arbitrator to preside over
their dispute. CMH Homes filed an interlocutory appeal challenging this appointment, requesting in the alternative that its
appeal be treated as a mandamus petition. The court of appeals determined it was without jurisdiction and dismissed the
suit. We agree with the court of appeals' determination that Texas Civil Practice and Remedies Code section 51.016 does
not allow an interlocutory appeal of an order appointing an arbitrator. However, under these circumstances, CMH Homes's
appeal may properly be considered as a petition for writ of mandamus. We remand for the court of appeals to consider this
appeal as a petition for writ of mandamus.

I. Background

A. Facts and Procedure

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 of the Texas Debt Collection Act in the financing of his
manufactured home. Perez filed a motion to compel arbitration on January 13, 2010. Although the parties agreed that the
contract was governed by the Federal Arbitration Act and agreed to submit to arbitration, they could not agree to an
arbitrator. After two months of disagreement, with both parties suggesting arbitrators in various correspondence, Perez's
attorney declared an impasse.^1' On March 8, 2010, after a hearing, the trial court issued an order appointing Gilberto
Hinojosa as arbitrator. Although the order was titled "Order on Plaintiffs Motion to Compel Arbitration," 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 appointment of 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 of 9


appeal was unavailable under Civil Practice and Remedies Code section 51.016 and dismissed the case for want of
jurisdiction. Id. at 593.


B. Jurisdiction and Standard ofReview
This court has jurisdiction to determine whether the court of appeals correctly decided its jurisdiction. See Badiga v. Lopez,
274S.W.3d681, 682 n. 1 (Tex. 2009) (citing Tex. Dep't ofCrim. Justice v. Simons, 140 S.W.3d 338, 343 n. 13 (Tex.
2004)). We review the court of appeals' determination of its jurisdiction de novo. Villafani v. Trejo, 251 S.W.3d 466, 467
(Tex.2008).

Unless a statute authorizes an interlocutory appeal, appellate courts generally only have jurisdiction over final judgments.
See Lehmann v. Har-Con Corp., 39 S.W.3d 191. 195 (Tex.2001); see also JackB. Anglin Co., Inc. v. Tipps, 842 S.W.2d
266. 272 (Tex. 1992) ("Interlocutory orders may be appealed only if permitted by statute." (citations omitted)). We strictly
apply statutes granting interlocutory appeals because they are a narrow exception to the general rule that interlocutory
orders are not immediately appealable. See, e.g., Tex. A&M Univ. Sys. v. *448 Koseoglu, 233 S.W.3d 835, 841
(Tex.2007); Bally Total Fitness Corp. v. Jackson, 53S.W.3d352, 355 (Tex.2001) (citation omitted). •


II. Discussion

First, we must determine whether the court of appeals lacked jurisdiction under Texas Civil Practice and Remedies Code
section 51.016 of an interlocutory appeal of an order appointing an arbitrator. If section 51.016 does not provide
jurisdiction, we then decide whether the court of appeals should have considered CMH Homes's interlocutory appeal as a
petition for writ of mandamus.


A. Texas Civil Practice and Remedies Code Section 51.016

Prior to the Legislature's 2009 amendment to the Texas Arbitration Act (TAA), parties seeking to appeal an order refusing
to compel arbitration would commonly file two separate appellate proceedings. Under the TAA, a party could bring an
interlocutory appeal of an order denying arbitration. See TEX. CIV. PRAC. & REM. CODE § 171.098. Under the Federal
Arbitration Act (FAA), a party could only challenge an order denying arbitration by mandamus. JackB. Anglin, 842
S.W.2d at 271-72. As a result, parallel proceedings were the norm in Texas arbitration disputes where parties were unsure
which arbitration act applied. Although "unnecessarily expensive and cumbersome," such parallel proceedings were
required. Id. at 272. Twice, this Court requested that the Legislature "consider amending the Texas Act to permit
interlocutory appeals of orders issued pursuant to the Federal Act." Id.; In re D. Wilson Constr. Co., 196 S.W.3d774, 780
n. 4 (Tex.2006) (quoting JackB. Anglin, 842 S.W.2d at 272). In response, the Legislature added section 51.016 to the Civil
Practice and Remedies Code in 2009. Act of May 27, 2009, 81st Leg., R. S., ch. 820, §§ 1, 3, 2009 Tex. Gen. Laws 2061
(codified at TEX. CIV. PRAC. & REM.CODE § 51.016). This is our first opportunity to construe the scope of the
Legislature's remedial action.

Section 51.016 provides that a party may appeal a judgment or interlocutory order "under the same circumstances that an
appeal from a federal district court's order or decision would be permitted by 9 U.S.C. Section 16." TEX. CIV. PRAC. &
REM. CODE § 51.016. Section 16 of the FAA provides:

      (a) An appeal may be taken from

      (1) an order

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

      (B) denying a petitionunder section4 of this title to order arbitration to proceed,

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

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

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

      (2) an interlocutory order granting, continuing,or modifying an 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 of 9


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

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

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

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

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

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

 9 U.S.C. § 16. Civil Practice and Remedies Code section 51.016 expressly incorporates federal law. Thus, an interlocutory
 appeal in this case is permitted only if it would be permitted under the same circumstances in federal court under section
 16. See Little v. Tex. Dep't ofCrim. 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 of section 16's jurisdictional grant, we first determine the nature of the order being appealed. The
order at issue is entitled "Order on Plaintiffs Motion to Compel Arbitration" and appoints Gilberto Hinojosa as arbitrator.
Although Perez's motion to compel arbitration did not request that the trial court appoint an arbitrator, Perez submitted
letters to the court administrator declaring an impasse and requesting the trial judge appoint an arbitrator.

At first glance, this order may appear to fit within section 16(b)(2) as an order "directing arbitration to proceed." 9 U.S.C. §
16(b)(2). The "Order on Plaintiffs Motion to Compel Arbitration" was issued in response to Perez's motion requesting that
the trial court compel arbitration. But the substance of the order is the appointment of Gilberto Hinojosa as arbitrator. See
Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992) ("[I]t is the character and function of an order that
determine its classification."). While it may be argued that by appointing an arbitrator the order implicitly compels the
parties to arbitration, the order does not explicitly grant Perez's motion to compel and does not explicitly compel the parties
to arbitrate their dispute. There is no question that both parties agreed to arbitrate their dispute; the open question remaining
was who would serve as the arbitrator. The purpose of the order was to answer that question.

 Section 5 of the FAA explicitly permits a trial court to appoint an arbitrator under certain circumstances. 9 U.S.C. § 5.
 Where the parties have previously agreed to a method for selecting an arbitrator, the parties must follow that method. Id.
However, if the agreed upon method breaks down and there is a lapse in appointing an arbitrator, the parties may petition
the trial court to appoint an arbitrator. Id.

An order appointing an arbitrator under section 5 is neither listed in section 16(a) (where appeals may be taken) nor in
section 16(b) (where appeals may not be taken). 9 U.S.C. § 16(a), (b). Even though section 16 is silent on the matter, CMH
Homes argues that an appeal of an order appointing an arbitrator is "permitted by Section 16" because some federal circuit
cases may have entertained interlocutory appeals regarding appointment of arbitrators pursuant to section 5J 'However,
none of the cited cases mentions whether the appeal is interlocutory and all but one of the cited cases fails to specifically
discuss itsjurisdictional basis orcite section \6P'Nat'l Am. Ins. Co. v. Transamerica *450 Occidental Life Ins. Co., 328
F.3d 462 (8th Cir.2003) (affirming the district court's selection of an arbitrator pursuant to section 5); ACEquip Ltd. v. Am.
Eng'g Corp., 315 F.3d 151 (2d Cir.2003) (same); see also The Stop & Shop Supermarket Co. LLC v. UnitedFood &
Commercial Workers Union Local 342, 246 Fed.Appx. 7 (2d Cir.2007) (same). The one exception, Universal Reinsurance,
specifically establishes its jurisdiction "pursuant to 9 U.S.C. § 16(a)(3), which authorizes review of "a final decision with
respect to an arbitration....'" Universal Reinsurance Corp. v. Allstate Ins. Co., 16F.3d 125, 126 (7th Cir.1994). Neither
CMH Homes nor Perez has suggested that this appeal was anything other than interlocutory. Because the trial court did not
enter a dismissal or otherwise dispose of all parties and claims, the order remains interlocutory and cannot be appealed
under section 16(a)(3).[4]5ee In re GulfExploration, LLC, 289 S.W.3d 836, 839 (Tex.2009) ("[TJhere can be an appeal if
the underlying case is dismissed." (citing Green TreeFin. Corp.-Ala. v. Randolph, 531 U.S. 79, 86-87, 121 S.Ct. 513, 148
L.Ed.2d 373 (2000))). Although we presume a court always evaluates its jurisdiction before deciding a matter, these cases
do not indicate whether their jurisdictional basis was section 16, and if so, whether the basis was section 16(a)(3) for final
ordersJ51 The only federal circuit case that speaks directly to the jurisdictional issue is O.P.C. Farms Inc. v. Conopco Inc.,
which held that under section 16, the trial court's order appointing an arbitrator was not a final decision and was thus
unappealable.161 154 F.3d 1047, 1048-49 (9th Cir. *451 1998). The court explained: "[T]he only basis for an appeal... that
could even be plausibly argued is § 16(a)(3). It is, however, clear that the appointment of the third arbitrator is not the final
decision in this case.... Consequently § 16 effectively deprives us of jurisdiction." Id.




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 6 of 9


The appellate jurisdiction of Texas courts in this case is based on federal law. The court of appeals had jurisdiction to
considerthe trial court's order if "appeal... wouldbe permitted by 9 U.S.C. Section 16" in federal court. TEX. CIV. PRAC.
& REM.CODE § 51.016. Because there is no apparent federal approach to judicial review under section 16 of orders
appointing arbitrators, we will not extrapolate jurisdiction from a dearth of federal authority to allow an interlocutory
appeal where the law is unclear and section 16 suggests otherwise.

Before the enactment of section 51.016, we specifically invited the Legislature '" [i]n the interests of promoting the policy
considerations of rigorous and expedited enforcement of arbitration agreements,... to consider amending the Texas Act to
permit interlocutory appeals of orders issued pursuant to the Federal Act.'" See In re D. Wilson, 196 S.W.3d at 780 n. 4
(quoting Jack B. Anglin, 842 S.W.2d at 272). While we agree the Legislature added section 51.016 to prevent unnecessary
parallel proceedings, this inconsistency generally arose when parties were unsure whether the TAA or the FAA applied to
their agreement. See JackB. Anglin, 842 S.W.2d at 272 ("[L]itigants who allege entitlement to arbitration under the Federal
Act, and in the alternative, under the TexasAct, are burdened with the need to pursueparallelproceedingsan interlocutory
appeal of the trial court's denial under the Texas Act, and a writ of mandamus from the denial under the Federal Act."). The
Legislature in enacting section 51.016 has remedied this particular situation and enacted a policy change that promotes
efficiency and common sense. See SidleyAustin Brown & Wood, LLPv. J.A. GreenDev. Corp., 327 S.W.3d 859, 862
(Tex. App.-Dallas 2010, no pet); Ranchers & Farmers Mut. Ins. Co. v. Stahlecker, No. 09-10-00286-CV, 2010 WL
4354020, at *1 (Tex. App.-Beaumont Nov. 4, 2010, no pet.) (mem.op.); In re Rio GrandeXarin II, Ltd., Nos. 13-10-00115-
CV, 13-10-00116-CV, 2010 WL 2697145, at *3-4 (Tex.App.-Corpus Christi-Edinburg July 6, 2010, pet. dism'd)
(mem.op.); 950 Corbindale, L.P. v. Kotts CapitalHoldings Ltd. P'ship, 316 S.W.3d 191, 195 n. 1 (Tex.App.-Houston [14th
Dist.] 2010, no pet.).

Here, however, the issue is not which Act applies, but whether this particular type of order is appealable. Just as all
interlocutory arbitration orders are not subject to appeal under the TAA, the Legislature in enacting section 51.016 did not
intend tomake all interlocutory orders under the FAA appealable, only those permitted by section 16 ofthe FAA.^1 Our
interpretation does not promote parallel proceedings of arbitration orders under the TAA and FAA and does not frustrate
*452 the Legislature's intent in enacting section 51.016.

The court of appeals below correctly determined it was without jurisdiction to hear an interlocutory appeal pursuant to
section 51.016. The only remaining appellate option for the parties at this juncture is mandamus relief.


B. Mandamus

Because Civil Practice and Remedies Code section 51.016 does not allow an interlocutory appeal of this type of order,
CMH Homes requests in the alternative that we instruct the court of appeals to treat CMH Homes's appeal as a petition for
writ of mandamus to prevent form from overriding substance.

Before the adoption of section 51.016, this Court held in In re Louisiana Pacific Corp. that a trial court's order appointing
an arbitrator could be reviewed by mandamus. 972 S.W.2d63, 64 (Tex. 1998) (per curiam). The arbitration agreement in
LouisianaPacific allowed each party to select an arbitrator. Id. at 63. After Louisiana Pacific withdrew its arbitrator due to
the objection of the other party, the trial court improperly appointed an arbitrator pursuant to section 5 of the FAA. Id. at
64. We conditionally issued the writ "[bjecause the terms of the contract and the FAA allow[ed] Louisiana Pacific to
choose an arbitrator" before the trial court intervened to name a replacement. Id. We explained the importance of
contractual arbitrator selection: "Since its inception, one of the central purposes of the FAA has been to allow the parties to
select their own arbitration panel if they choose to do so. ' Toward this end, it is desirable that the arbitration panel consist
of arbitrators chosen by each of the parties.'" Id. at 65 (quoting Lobo & Co. v. PlymouthNavigation Co., 187F.Supp. 859,
860 (S.D.N. Y. I960)).

Although this court decided Louisiana Pacific when FAA interlocutory orders could only be reviewed by mandamus, the
Legislature's addition of section 51.016 is of no effect here. As explained above, 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
provide for the review of this type of order in state court. See id. at 65 ("LouisianaPacific has no adequateremedy by
appeal because the FAA does not provide for review of the trial court's actions in state court."). Moreover, "[mjandamus is
proper to correct a clear abuse of discretion when there is no adequate remedy 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 alternative to
traditional litigation would be defeated").




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 7 of 9


Perez argues mandamus review is inappropriate because CMH Homes failed to file a separate mandamus petition and,
citing JackB. Anglin, contends that the court "may not enlarge [its] appellate jurisdiction absent legislative mandate." 842
S.W.2d at 272. However, CMH Homes invoked the court of appeals' appellate jurisdiction by specifically requesting that
its appeal be treated as a mandamus petition. See Warwick Towers Council ofCo-Owners v. Park Warwick, L.P., 244
S.W.3d 838, 839 (Tex.2008) ("[T]he factor which determines whether jurisdiction has been conferred on the appellate court
is not the form or substance of the bond, certificate or affidavit, but whether the instrument was filed in a bona fide attempt
to invoke *453 appellate court jurisdiction." (internal quotations and citations omitted)); see also Linwoodv. NCNB Tex.,
885 S.W.2d 102, 103 (Tex. 1994) ("The court of appeals ... has jurisdiction over the appeal if a party files an instrument in a
bona fide attempt to invoke the appellate court's jurisdiction."); GrandPrairie Indep. Sch. Dist. v. S. Parts Imps., 813
S.W.2d499. 500 (Tex. 1991) ("If the appellant timely files a document in a bona fide attempt to invoke the appellate court's
jurisdiction, the court of appeals, on appellant's motion, must allow the appellant an opportunity to amend or refile the
instrument required by law or our Rules to perfect the appeal").

Texas policy as ""embodied in our appellate rules ... disfavors disposing of appeals based upon harmless procedural
defects.'" Higgins v. Randall Cnty. Sherifs Office, 257 S.W.3d 684, 688 (Tex.2008) (quoting Verburgtv. Dorner, 959
S.W.2d 615, 616 (Tex.1997)); see also TEXR.APP. P. 44.3 ("A court of appeals must not affirm or reverse a judgment or
dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or
amend the defects or irregularities."). This Court has previously treated a petition for review as a petition for writ of
mandamus where the appellant/relator specifically sought mandamus relief. Powell y. Stover, 165 S.W.3d 322. 324 n. 1
(Tex.2005). And it is our practice when confronted with parallel mandamus and appeal proceedings "to consolidate the two
proceedings and render a decision disposing of both simultaneously." In re ValeroEnergy Corp., 968 S.W.2d 916, 917
(Tex. 1998).

Moreover, nothing in the procedures for interlocutory appeals and mandamus actions prevents us from treating this appeal
as a petition for writ of mandamus. Appeals from interlocutory orders are accelerated, and an accelerated appeal is
perfected by filing a notice of appeal within twenty days of the order. See TEX. R.APP. P. 26.1(b). Because mandamus is
"controlled largely by equitable principles," there is no fixed deadline for filing original proceedings in the Texas Rules of
Appellate Procedure. In re Int'l Profit Assocs., Inc., 21A S.W.3d672,676 (Tex. 2009) (citations omitted). An appeal
complying with the rules governing an accelerated appeal would generally be timely for mandamus purposes. Additionally,
briefs in mandamus actions and interlocutory appeals have the same content and page length requirements. Compare
TEX.R.APP. P. 38.1, .4 (stating contents of brief and page length requirement for appeal to the courts of appeals), with
TEX.R.APP. P. 52.3,.6 (stating contents of brief and page length requirement for original proceedings at the supreme court
and courts of appeals). "[T]he interests of promoting the policy considerations of rigorous and expedited enforcement of
arbitration agreements" would not be served by letting a technicality rule the dayy'JackB. Anglin, 842 S.W.2d at 272.

We will not unnecessarily waste the parties' time and further judicial resources by requiring CMH Homes to file a separate
document with the title "petition for writ of mandamus" listed on the cover where the party has expressly requested
mandamus treatment of its appeal in an uncertain legal environment. See Wagner & Brown, Ltd. v. Horwood, 53 S.W.3d
347, 351 (Tex.2001) (rejecting an "approach [that] catapults form over substance to deny appellate review on the merits").
*454 Because CMH Homes specifically requested mandamus relief in the court of appeals and preserved that issue in this
Court, and because judicial efficiency militates against requiring CMH Homes to file a separate original proceeding, we
instruct the court of appeals to consider this appeal as a petition for writ of mandamus. Today, we speak only to the
propriety of mandamus review and not to the propriety of mandamus reliefin this particular case. Because the merits were
not briefed to this Court, we do not decide whether the trial judge improperly appointed an arbitrator.


III. Conclusion

We hold that Texas Civil Practice and Remedies Code section 51.016 does not permit interlocutory appeal from an order
appointing an arbitrator. However, this appeal may properly be considered as a petition for writ of mandamus, as CMH
Homes requested. The court of appeals erred in dismissing CMH Homes's appealfor lack of jurisdiction. Accordingly, we
reverse and remand to the court of appeals for further proceedings consistent with this opinion.

NOTES

[1] After receivingPerez's motion to compel arbitration, CMH Homes presented three names for consideration as potential
arbitrators. Perez rejected the suggested arbitrators and presented CMHHomeswith a proposed agreed order that
compelled the parties to arbitrationand left a blank for the court to appoint an arbitrator. CMH Homes did not agree to the
proposedorder and offeredto submit two more arbitrator namesfor Perez'sconsideration. Instead, Perez sent a copy of 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 of 9


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 of the two
arbitrators, Donato Ramos, but Perez was concerned about conflicts of interests because his attorneys had financial
connections to Ramos. The court held a hearing on February 9, 2010 where the parties appeared to agree to the appointment
of Ramos. However, when the parties could not agree to a waiver of conflicts for Ramos, the agreement fell apart. Perez
notified the court that they could not reach an agreed waiver and again asked the court to appoint an arbitrator and re
submitted the three names previously suggested, including Gilberto Hinojosa.

[2] CMH Homes relies upon the following cases: Nat'lAm. Ins. Co. v. Transamerica Occidental Life Ins. Co., 328 F.3d 462
(8th Cir. 2003); ACEquip Ltd. v. Am. Eng'g Corp., 315F.3d 151 (2d Cir.2003); UniversalReinsurance Corp. 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. ContinentalInsurance Co., 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 Gulf Exploration, 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" of the 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 inappropriate because the trial court cannot dispose of all claims and all parties
until arbitration is completed.

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

[5] The appellants in NationalAmerican and ACEquip represented to the circuit courts that the order being appealed was
final. See Appellant'sBrief at 3, ACEquip Ltd. v. Am. Eng'gCorp., 315F.3d 151 (2d Cir.2003);Appellant'sBrief at 1, Nat'l
Am. Ins. Co. v. Transamerica Occidental LifeIns. Co., 328F.3d462 (8th Cir.2003). The appellees did not challenge this
assertion in ACEquip, see Brief of Plaintiff-Appellee, ACEquip Ltd. v. Am. Eng'g Corp., 315 F.3d 151 (2d Cir.2003), and
appearnot to have challenged the assertion in National American, see Reply Brief of Appellant, Nat'l Am. Ins. Co. v.
Transamerica Occidental Life Ins. Co., 328F.3d 462 (8th Cir.2003). In both cases,the partiestreatedthe order appointing
an arbitrator as final, and the courts of appeals appear to have taken the parties at their word.

[6] In its analysis, the court in O.P.C. Farms concluded that an order appointing an arbitrator is "embedded" in the case.
O.P.C. FarmsInc. v. Conopco Inc., 154 F.3d 1047, 1049 (9th Cir. 1998) (citation omitted). However, the United States
 Supreme Courteliminated the distinction betweenembedded and independent proceedings in Green Tree, which may raise
 questions aboutthe precedential value of this case. See Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 87-89,121
 S.Ct. 513, 148L.Ed.2d 373 (2000).

 [7] The language of section51.016, and therefore FAA section 16, also indicates the Legislature did not intendto create a
 comprehensive appellate scheme makingall FAA orders appealable through interlocutory appeal, but insteadfocused on
denials of arbitration. See TEX. CIV. PRAC. & REM.CODE § 51.016; 9 U.S.C. § 16; In re Gulf Exploration, 289 S.W.3d
 at 839 ("[T]he FAA 'generally permits immediate appeal of orders hostile to arbitration ... butbars appeal of interlocutory
 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 (5th Cir.2004) (noting the "general, congressionally mandated rule that anti-arbitration decisions are
 immediately appealable under § 16(a)(1)").

 [8] Although wenote that CMH Homes's petition was notcertified at this Court asrequired by Texas Rule of Appellate
 Procedure 52.3(j), we areconfident that CMH Homes willfully comply with Rule 52on remand to thecourt of appeals.

 About
 FAQ
 Tour




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

DOV AVNI KAMINETZKY a/k/a DOV K. AVNI                  )(
                                             Appellant )(
                              v.                       )(
DOSOHS I, LTD,                                         )(
                                             Appellee )(
[APPEAL of 5-15-14 FROM #1997-40590/11 JDC;HARRIS COUNTY.TX




                       EXHIBIT No.    "/6"
          TO APPELLANT'S ORIGINAL MOTION [ of 11-25-15 ]TO RECALL

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

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


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

           DEFRAUDED MOVANT, OR TREAT IT AS ORIGINAL PROCEEDING-

          TO BE DECIDED, IF NEEDED-BY MANDAMUS to TX SUPREME COURT
in Re D & KW Family, L.P., - CourtListener.com                                                                          Page 2 of 11



        L A g* B O Y




        FRIDAY




       i \ Now Through
       1 }Monday;
       |/Nov. 30th! :         ree Law Proiect a federally-recognized 501(c)(3) non-profit. We rely heavily on donations for our
                              ads, we ask for a $ 10 donation each year.




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

(did

Col
Filed: August 9th, 2012

Status: Precedential

Docket Number: 01-11-00276-CV

Fingerprint: 56fedba9ca5516198cb Ib2d3b 1aaa720dfbb2db8



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., - CourtListener.com                                                                   Page 3 of 11



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


 +


          The underlying case is Aldine Independent School District v. Ranch Town,
          Inc., No. 94-08239 in the 151st District Court of Harris County, Texas, the
          Honorable Mike Engelhart, presiding,
     to dismiss D S KW's appeal for want of jurisdiction. In its response to the motion

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

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

 for writ of mandamus.


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

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

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

mandamus.


                                                 Background

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

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

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

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

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

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

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

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

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

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

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

                                                         2
     Sheriff or Constable to seize and sell the property. The agreed judgment described

the property and rights of way thereon as follows:

         LOTS ONE HUNDRED THIRTY-NINE (139) THROUGH ONE
         HUNDRED FORTY-TWO, (142), BLOCK NINE (9), ALDINE
         MOBILEHOME CITY,         AN UNRECORDED SUBDIVISION             IN
         HARRIS COUNTY,       TEXAS,    OUT OF THE EAST FIFTY               (50)
         ACRES,    MORE OR LESS,       AND ALL RIGHTS OF WAYS WITHIN
         SUCH FIFTY (50) ACRES, IN THE JOSEPH MCGINNIS
         SURVEY, ABSTRACT 587, SAVE AND EXCEPT THAT PART OF
         THE FIFTY (50) ACRES CONVEYED TO THE STATE OF
         TEXAS, AND BEING MORE PARTICULARLY DESCRIBED BY
         METES    AND    BOUNDS   IN ATTACHED    EXHIBIT       "A"    AND
         SAVE AND       EXCEPT THOSE    PROPERTIES      PREVIOUSLY
         CONVEYED AND       DESCRIBED    IN   DEEDS RECORDED AS
         FILM CODE NUMBERS XXX-XX-XXXX,            XXX-XX-XXXX,             XXX-XX-XXXX,
         XXX-XX-XXXX,       XXX-XX-XXXX,      XXX-XX-XXXX,       AND XXX-XX-XXXX,          IN
         THE DEED RECORDS OF HARRIS COUNTY,                  TEXAS,    SAID
         LOTS BEING SHOWN FOR REFERENCE PURPOSES ONLY ON
         THE PLAT ATTACHED AS          EXHIBIT   "B".


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

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

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

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

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




https://www.courtlistener.eom/opinion/3122204/in-re-d-kw-family-lp/?                                              11/24/2015
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., - CourtListener.com                                                              Page 5 of 11


 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. Abu-

Ahmad,

783S.W.2d210




https://www.courtlistener.com/opinion/3122204/in-re-d-kw-family-lp/?                                        11/24/2015
in Re D & KW Family, L.P., - CourtListener.com                                                          Page 6 of 11


 , 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




https://www.courtlistener.com/opinion/3122204/in-re-d-kw-family-lp/?                                    11/24/2015
in Re D & KW Family, L.P., - CourtListener.com                                                             Page 7 of 11



  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




https://www.courtlistener.com/opinion/3122204/in-re-d-kw-family-lp/?                                       11/24/2015
in Re D & KW Family, L.P., - CourtListener.com                                                      Page 8 of 11



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)).




https://www.courtlistener.com/opinion/3122204/in-re-d-kw-family-lp/?                                 11/24/2015
in Re D & KW Family, L.P., - CourtListener.com                                                        Page 9 of 11



          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




https://www.courtlistener.com/opinion/3122204/in-re-d-kw-family-lp/?                                  11/24/2015
in Re D & KW Family, L.P., - CourtListener.com                                                       Page 10 of 11


 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.




                                                15




About
FAQ




https://www.courtlistener.eom/opinion/3122204/in-re-d-kw-family-lp/?                                   11/24/2015
in Re D & KW Family, L.P., - CourtListener.com                                    Page 1 of 11




  Toggle navigation   Court ListenerCL
    • About
     • FAQ
    • Tour
    • Coverage
    • Sign in / Register


© Back to Home Page


Your Notes

(edit) f

(none)

Cited By (1)

This opinion has been cited by these opinions:

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


Full List of Citations©


Authorities (12)

This opinion cites:

    • America's Favorite Chicken Co. v. Galvan. 897 S.W.2d 874 (Tex. App. 1995)
    • Barton v. Gillespie. 178 S.W.3d 121 (Tex. App. 2005)
    • CMH HOMES v. Perez. 340 S.W.3d 444 (Tex. 2011)
    • Dikeman v. Snell. 490 S.W.2d 183 (Tex. 1973)
    • Escobar v. Escobar. 711 S.W.2d 230 (Tex. 1986)


Full Table of Authorities ©

View Original

From the court | Our backup

Share this Opinion

f^ Jj_ Ql Ihttps:/Awww.courtlistene7|

Sponsored Links




https://www.courtlistener.com/opinion/3122204/in-re-d-kw-family-lp/?               11/24/2015
         tfa»*-'*'w*«MWJ^^                                                            i-E^qsU^^h^MU. ,*.^r^iT.t*«Jj^l^Anai^;r^fl,irrfT»tiil




                                                                                                                                                                                U.S. POSTAGE
                                                                                                                                                                                «         $.49
                                                                                                                                                               ,


                                                                                                                                                                                         77002
                                                                                                                                                                                    Date ol sale   _
                                                                                                               U.S. POSTAGE                                                         11/25/15 *     P/-
                                                                                                                            $1.19                                                   06    2S00 W
                                                                                                                                                                                    08282341 OT
                                                                                                                   FCM LG ENV
                                     1   ~
                                                                                                                         77002
                                                                                                                    Date of sale
                                                                                                       S        511/25/15 *
                                                                                                      If. 806                2S00 W
                              3 A        i   |)                                                         *•      S08282341 w

              •^eS        &» *j
                                                                       PS® FDRST-CLASS MNL®
                                                             CERT MAIL RSTRDEL                                                   0 lb. 10.70 oz.



     4   ^^    tb ,

                                                                       frM> %£ »
                                                                                                                                                                   ^4 « v ?',



                                                             SHIP
                «1>   «/      Jf * " *       J     > p   ^   to:    14TH COURT OF APPEALS
?«                                                                  301 FANNIN ST
                                                                    HOUSTON TX 77002-2066

         t 4* '
                                                                        USPS OERTDFDED MlM=TM
                                                  *;
                      h       ** w   /




                             w4                                            9569 3000 1976 5329 000116




                                                                                                                                              ft.   <4 >   *




                                                                                                              I I III! I II           111
