                                                                                          ACCEPTED
                                                                                      01-15-00705-CV
                                                                           FIRST COURT OF APPEALS
                                                                                   HOUSTON, TEXAS
                                                                                 12/8/2015 2:09:36 PM
                                                                                CHRISTOPHER PRINE
                                                                                               CLERK


                           No. 01-15-00705-CV

                          In the Court of Appeals                    FILED IN
                                                              1st COURT OF APPEALS
                   For the First Judicial District of Texas       HOUSTON, TEXAS
                               Houston, Texas                 12/8/2015 2:09:36 PM
                                                              CHRISTOPHER A. PRINE
                                                                      Clerk
                               Jay H. Cohen,
                                 Appellant

                                      v.

Tour Partners, Ltd.; Dennis J. Wilkerson; and Eighteen Investments, Inc.,
                                Appellees

                  On Appeal from Cause No. 2013-68181
             In The 55th District Court of Harris County, Texas
                 The Honorable Judge Shadwick, Presiding

        Appellees’ Response to Appellant’s Motion for Extension

                                                      Hawash Meade Gaston
                                                      Neese & Cicack LLP
                                                      Walter J. Cicack
                                                      Texas Bar No. 04250535
                                                      Samuel B. Haren
                                                      Texas Bar No. 24059899
                                                      2118 Smith Street
                                                      Houston, Texas 77002
                                                      713-658-9001 (phone)
                                                      713-658-9011 (fax)
                                                      wcicack@hmgnc.com
                                                      sharen@hmgnc.com
                                                      Attorneys for Appellees
                                                      and Cross Appellant
      Appellant Jay H. Cohen’s opening brief was due on November 13, 2015. He

did not file one until December 8, 2015. His excuses for his tardiness are vague and

self-contradictory, and the Court should not permit him to file his late brief.

                                    Background

      Cohen and Cross-Appellee Tour Partners, Ltd. (“Tour Partners”) were

involved in related lawsuits before the 55th and 269th District Courts of Harris

County, Texas (the “55th Case” and “269th Case,” respectively). The 55th Case led

to the instant appeal. Cohen’s appeal of the 269th Case was docketed in the

Fourteenth Court of Appeals as Cause Number 14-15-00392-CV. Cohen requested

and received three extensions of his briefing deadline, but he never filed his opening

brief—or even a fourth request for extension—in that appeal. See Exhibit 1, 14th

Court Motion to Dismiss (detailing Cohen’s history of extensions). The Fourteenth

Court dismissed Cohen’s appeal of the 269th Case on November 10, 2015. See

Exhibit 2, 14th Court Memorandum Opinion.

      Cohen’s opening brief was due in the instant appeal on November 13, 2015.

Cohen did not meet that deadline. Tour Partners filed a Motion to Dismiss on

November 23, 2015, which is incorporated herein. On November 24, 2015, the Court

issued a Notice of Late Brief which warned Cohen that his appeal could be dismissed

unless he filed a brief and motion for extension by December 4, 2015. That notice

further stated that an untimely brief would only be accepted if Cohen could
“reasonably explain [his] failure to timely file [his] brief” and if Tour Partners “is

not significantly injured” by Cohen’s failure to comply with his briefing deadline.

Cohen missed that deadline as well.

      On December 8, 2015, Cohen filed his brief and motion for extension (the

“Motion”). But his Motion does not offer a reasonable explanation for his failure to

meet his briefing deadline.

                                      Discussion

I.    Cohen’s explanations for his untimely brief are vague and contradictory.

      According to Cohen, he should be excused from his briefing deadline because

(1) he was too sick to file a timely motion for extension and (2) he has been too busy

to timely file a motion for extension. That is, Cohen says he was unable to draft a

two-page motion for extension despite having the time and ability to try a case,

prepare for three other trials, attend two mediations, participate in a tax protest

hearing, prepare for and conduct an involved shareholder meeting, respond to

discovery, and perform “[v]arious other time-sensitive matters for clients.” See

Motion at 3–4. Apparently, filing a motion to extend a briefing deadline in this Court

was not one of those a “time-sensitive matters” Cohen’s attorney—or his partner—

chose to perform.

      Cohen’s Motion does not list all of the relevant “other matters” on which his

attorney worked. For example, Cohen’s counsel was not so ill as to prevent him from



                                          2
filing a motion to extend in his case against Tour Partners in the Fourteenth Court

on September 9, 2015, nor was he too busy to file a new lawsuit on behalf of Cohen

on October 22, 2015. See Exhibit 3, Third Motion for Extension; Exhibit 4, Cohen’s

District Court Petition. Moreover, Cohen’s attorney further fails to explain how his

illness and family matters prevented him from filing a timely motion for extension

or contacting Tour Partners regarding his predicament but did not prevent him from

completing the tasks described in his Motion as well as the “[v]arious other time-

sensitive matters for clients.” In short, Cohen has failed to provide a “reasonable

explanation” for his delay.

II.    Tour Partners would be injured if Court accepts Cohen’s untimely brief.

       Tour Partners has filed a cross appeal in this case.1 That appeal would provide

an alternative basis to uphold the trial court’s ruling in the event Cohen would

otherwise succeed in the instant appeal. If Cohen does not succeed in his appeal,

Tour Partner’s cross appeal will be moot. Because Cohen’s other appeal was

dismissed by the Fourteenth Court, Tour Partners asked Cohen on November 16,

2015 whether he intended to file a brief in this appeal. See Exhibit 8,



1
  Tour Partners won both the 55th and 269th Cases on summary judgment. See Exhibit 5, 269th
Summary Judgment Order; Exhibit 6, 55th First Summary Judgment Order. After the 269th Court
issued a final judgment, Tour Partners filed a supplemental motion for summary judgment in the
55th Case based on res judicata. Because Tour Partners had already defeated Cohen’s claims, the
55th Court denied that supplemental motion as moot. See Exhibit 7, 55th Second Summary
Judgment Order.


                                              3
Correspondence. Cohen did not respond to that email, nor did he (1) explain his

difficulties in filing a brief nor (2) ask Tour Partners to agree to an extension.2 Had

he done so in a timely manner, Tour Partners would have certainly considered

agreeing to an extension based on the health of Cohen’s attorney. Tour Partners

agreed to Cohen’s first request for an extension in the Fourteenth Court of Appeals,

demonstrating its reasonableness in these matters. See Exhibit 9, Cohen’s First

Motion for Extension.

       Due to the Fourteenth Court’s dismissal of Cohen’s other appeal and Cohen’s

lack of any indication that he intended to file a brief or seek an extension in this

appeal, Tour Partners correctly surmised that Cohen did not intend to file a timely

brief in this case. As a result, Tour Partners did not undertake the time and expense

of drafting an unnecessary brief. If Cohen is allowed to file his untimely brief, Tour

Partners will not be able to present its cross appeal unless the Court grants it leave

to do so.

                                           Conclusion

       Cohen did not file his brief or Motion until well after the deadline. As detailed

in Tour Partners’ previously-filed Motion to Dismiss, Cohen is a serial-offender in

this regard. Cohen has not provided a cogent or reasonable explanation for his


2
  Cohen’s certificate of conference notwithstanding, he has not communicated with Tour Partners
at all regarding his briefing in this case, let alone conferred on his request for an extension of his
briefing deadline.


                                                  4
failure, and allowing Cohen to file an untimely brief would harm Tour Partners. Tour

Partners prays that the Court dismiss Cohen’s appeal, issue a final judgment, and

grant Tour Partners all other relief to which it is entitled.

      In the event the Court accepts Cohen’s untimely brief, Tour Partners asks for

fourteen (14) days to file its opening brief on its cross appeal.

                                                       Respectfully submitted,

                                                       Hawash Meade Gaston
                                                       Neese & Cicack LLP

                                                       /s/ Walter J. Cicack
                                                       Walter J. Cicack
                                                       Texas Bar No. 04250535
                                                       Samuel B. Haren
                                                       Texas Bar No. 24059899
                                                       2118 Smith Street
                                                       Houston, Texas 77002
                                                       713-658-9001 (phone)
                                                       713-658-9011 (fax)
                                                       wcicack@hmgnc.com
                                                       sharen@hmgnc.com

                                                       Attorneys for Appellees and
                                                       Cross-Appellant




                                            5
                             Certificate of Service

      I hereby certify that a true and correct copy of the foregoing was served on

the following via Electronic Service, on December 8, 2015:

      George F. May
      Twomey | May, PLLC
      2 Riverway, 15th Floor
      Houston, Texas 77056
      george@twomeymay.com

      Attorney for Appellant
      Jay H. Cohen

                                                        /s/ Samuel B. Haren
                                                             Samuel B. Haren




                                        6
                                                                               ACCEPTED
                                                                           14-15-00392-CV
                                                           FOURTEENTH COURT OF APPEALS
                                                                        HOUSTON, TEXAS
                                                                     10/19/2015 2:51:00 PM
                                                                     CHRISTOPHER PRINE
                                                                                    CLERK


                   No. 14-15-00392-CV

                  In the Court of Appeals
        For the Fourteenth Judicial District of Texas
                      Houston, Texas

                      Jay H. Cohen,
                        Appellant

                             v.

                   Tour Partners, Ltd.,
                        Appellee

         On Appeal from Cause No. 2013-41051
    In The 269th District Court of Harris County, Texas
          The Honorable Judge Hinde, Presiding

Tour Partners’ Motion to Dismiss for Want of Prosecution

                                             Hawash Meade Gaston
                                             Neese & Cicack LLP
                                             Walter J. Cicack
                                             Texas Bar No. 04250535
                                             Samuel B. Haren
                                             Texas Bar No. 24032854
                                             2118 Smith Street
                                             Houston, Texas 77002
                                             713-658-9001 (phone)
                                             713-658-9011 (fax)
                                             wcicack@hmgnc.com
                                             sharen@hmgnc.com
                                             Attorneys for Appellee
                                             Tour Partners, Ltd.




                      Exhibit 1
      Appellant Jay H. Cohen (“Cohen”) has received three extensions of his

briefing deadline. Despite these extensions, Cohen still has not filed his brief. As

demonstrated below, the Court should dismiss Cohen’s appeal for want of

prosecution.

                                   Background

      The initial clerk’s record was filed on June 10. Cohen’s opening brief was

initially due on July 10. Cohen has requested three extensions of his briefing

deadline:

       First Extension: Two days before his initial deadline, Cohen sought a
        thirty-one day extension based on his attorney’s busy schedule. Appellee
        Tour Partners, Ltd. (“Tour Partners”) did not oppose this request. The
        Court granted the thirty-one day extension.

       Second Extension: The day of the second deadline, Cohen sought a thirty-
        day extension based on his dissatisfaction with the contents of the Clerk’s
        Record. Tour Partners did not oppose this request. The Court granted the
        thirty-day extension.

       Third Extension: The day of the third deadline, Cohen sought another
        extension based on his dissatisfaction with the Contents of the Clerk’s
        Record. Because Cohen’s own inattention to the file caused the lateness of
        the Clerk’s Record, Tour Partners opposed this request. The Court
        (1) granted a thirty-six day extension and (2) warned that “no further
        extensions will be granted absent exceptional circumstances . . . .”
        Order Granting Third Motion to Extend (emphasis in original).

      Cohen’s final deadline to file his brief was Thursday, October 15. As of the

afternoon of Monday, October 19, Cohen still has not filed his brief.
                                          Discussion

       “If an appellant fails to timely file a brief,” Texas Rule of Appellate Procedure

38.8(a)(1) allows the Court to “dismiss the appeal for want of prosecution, unless

the appellant reasonably explains the failure . . . .” Despite three extensions, Cohen

has failed to timely file a brief.

       According to Cohen, this failure was caused by Cohen’s confusion over the

contents of his own record:

       In reviewing the brief as drafted last week, I realized that it had been
       drafted assuming that no summary judgment evidence was excluded.
       The order granting in part some of your objections had not made it into
       the record. I immediately emailed Sam [Haren, attorney for Tour
       Partners,] and you to ask permission to include the order as a tab to the
       brief, which Sam indicated was not opposed.1 To not mislead the Court,
       I then attempted to re-draft the brief to ensure that there was no error as
       to the summary judgment evidence admitted, and I also had to address
       the exclusions. The re-write was too significant (as you can imagine) to
       complete in time. I have redrafted the brief and will be filing it
       tomorrow with a motion to extend time to the filing date. Unless you
       tell me otherwise, I will assume you are opposed to the extension.

Exhibit 1, Email from May to Cicack at 1 (emphasis added). That is, Cohen failed

to meet his fourth briefing deadline because he once again did not thoroughly

examine the Clerk’s Record until the evening his brief was due.2




1
 The request referenced by Cohen was sent at 5:24 p.m. on the October 15 briefing deadline. See
Exhibit 1, Email from May to Cicack at 2. Tour Partners’ counsel agreed to this request. Id.
2
  In assessing this inattention, the Court should note that Cohen’s current appellate counsel also
represented him at the time of the evidentiary ruling in question.


                                                2
                                     Prayer

       Cohen has had three chances to file his brief on time. Tour Partners

respectfully submits that the Court should not indulge Cohen’s continued lack of

diligence by granting him a strike four. Tour Partners prays that the Court dismiss

Cohen’s appeal for want of prosecution and grant Tour Partners all other relief to

which it is entitled.

                                                   Respectfully submitted,

                                                   Hawash Meade Gaston
                                                   Neese & Cicack LLP

                                                   /s/ Walter J. Cicack
                                                   Walter J. Cicack
                                                   Texas Bar No. 04250535
                                                   Samuel B. Haren
                                                   Texas Bar No. 24032854
                                                   2118 Smith Street
                                                   Houston, Texas 77002
                                                   713-658-9001 (phone)
                                                   713-658-9011 (fax)
                                                   wcicack@hmgnc.com
                                                   sharen@hmgnc.com

                                                   Attorneys for Appellee
                                                   Tour Partners, Ltd.




                                        3
                            Certificate of Conference

      I hereby certify that I have conferred with opposing counsel concerning the

relief requested herein. Opposing counsel is opposed.

                                                         /s/ Samuel B. Haren
                                                              Samuel B. Haren

                              Certificate of Service

      I hereby certify that a true and correct copy of the foregoing was served on

the following via Electronic Service, on October 19, 2015:

      George F. May
      Twomey | May, PLLC
      2 Riverway, 15th Floor
      Houston, Texas 77056
      george@twomeymay.com

      Attorney for Appellant
      Jay H. Cohen

                                                         /s/ Samuel B. Haren
                                                              Samuel B. Haren




                                        4
From:                        George May <george@twomeymay.com>
Sent:                        Monday, October 19, 2015 12:32 PM
To:                          Walter Cicack; Sam Haren
Subject:                     RE: Cohen v. Preston, Tour Partners


Walter,

I am preparing for a shareholders' meeting for a corporate client today.

In reviewing the brief as drafted last week, I realized that it had been drafted assuming that no summary judgment
evidence was excluded. The order granting in part some of your objections had not made it into the record. I immediately
emailed Sam and you to ask permission to include the order as a tab to the brief, which Sam indicated was not opposed.
To not mislead the Court, I then attempted to re-draft the brief to ensure that there was no error as to the summary
judgment evidence admitted, and I also had to address the exclusions. The re-write was too significant (as you can
imagine) to complete in time. I have redrafted the brief and will be filing it tomorrow with a motion to extend time to the
filing date. Unless you tell me otherwise, I will assume you are opposed to the extension.

Should you wish to file a motion to dismiss, which I of course would oppose, please note the above for the Court. I am
tied up today but available in the morning tomorrow if you wish to talk.

George F. May, BS, JD
Twomey | May, PLLC
2 Riverway, 15th Floor
Houston, Texas 77056
(713) 659-0000
(832) 201-8485 – Facsimile
george@twomeymay.com

NOTICE: This transmission may be: (1) subject to the Attorney-Client Privilege, (2) an attorney work product, or (3)
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transactions.



-----Original Message-----
From: Walter Cicack [mailto:wcicack@hmgnc.com]
Sent: Monday, October 19, 2015 11:59 AM
To: George May; Sam Haren
Subject: RE: Cohen v. Preston, Tour Partners

George, I just left you a message. I just want to make sure we did not miss something. If you filed something in the appeal
of the Cohen case I did not get it. Assuming you did not file something, we will file a motion to dismiss and I wanted to see
if you opposed. Please get back to me. Thanks

Walter Cicack
(713) 658-9003 (direct)

-----Original Message-----
From: Walter Cicack
Sent: Friday, October 16, 2015 4:35 PM
To: 'George May' <george@twomeymay.com>; Sam Haren <sharen@hmgnc.com>
                                                               1

                                                     Exhibit 1
Subject: RE: Cohen v. Preston, Tour Partners

George, did you file something? We did not receive anything.

Walter Cicack
(713) 658-9003 (direct)

-----Original Message-----
From: George May [mailto:george@twomeymay.com]
Sent: Thursday, October 15, 2015 5:24 PM
To: Sam Haren <sharen@hmgnc.com>; Walter Cicack <wcicack@hmgnc.com>
Subject: Cohen v. Preston, Tour Partners

Sam and/or Walter,

Judge Hinde's order on your summary judgment objections did not make it into the record somehow. May I include a copy
as a tab with the appendix?

George May
Twomey May, PLLC
Two Riverway, 15th Floor
Houston, Texas 77056
(713) 659-0000
(281) 201-8485 - fax
george@twomeymay.com




                                                           2
Motion Granted; Appeal Dismissed and Memorandum Opinion filed
November 10, 2015.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-15-00392-CV

                           JAY COHEN, Appellant
                                       V.

 TOURS PARTNERS, LTD. AND PRESTON REALTY CORPORATION,
                         Appellee

                   On Appeal from the 269th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2013-41051

                MEMORANDUM                      OPINION


      This is an appeal from a judgment signed January 28, 2015. The clerk’s
record was filed June 10, 2015. No reporter’s record was taken. Appellant’s brief
was due October 15, 2015. No brief was filed.

      On October 29, 2015, appellee filed a motion to dismiss for want of
prosecution. See Tex. App. P. 42.3(b). Appellant filed no response. Accordingly,



                                 Exhibit 2
appellee’s motion is granted and the appeal is ordered dismissed.

                                  PER CURIAM

Panel consists of Justices Boyce, Busby, and Brown.




                                         2
                                                                                          ACCEPTED
                                                                                      14-15-00392-CV
                                                                      FOURTEENTH COURT OF APPEALS
                                                                                   HOUSTON, TEXAS
                                                                                  9/9/2015 5:51:38 PM
                                                                                CHRISTOPHER PRINE
                                                                                               CLERK

                              NO: 14-15-00392-CV


           IN THE FOURTEENTH DISTRICT COURT OF APPEALS
                             AT HOUSTON, TEXAS

                                 JAY H. COHEN,
                                                    Appellant
                                         v.
                            TOUR PARTNERS, LTD,
                                                     Appellee

           From the 269th Judicial District Court of Harris County, Texas
                        Trial Court Cause No. 2013-41051

  APPELLANT’S THIRD MOTION FOR EXTENSION OF TIME TO
      FILE APPELLANT’S BRIEF TO ALLOW TIME FOR
          SUPPLEMENTAL RECORD TO BE FILED


TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      Pursuant to Texas Rule of Appellate Procedure 26.3, Appellant Jay H.

Cohen files this Motion for Extension of Time to File his Appellant’s Brief,

which motion complies with Rule 10.5(b), and in support thereof would

respectfully show as follows:

      1.       This is an appeal from a final judgment in Cause No. 2013-41051;

Jay H. Cohen v. Tour Partners, Ltd. and Preston Realty Corporation; in the

269th Judicial District Court of Harris County, Texas.

      2.       This is Appellant’s third request for an extension of time.



                                 Exhibit 3
Appellant’s first unopposed request was granted on July 9, 2015 and his second

unopposed request was granted on August 13, 2015.

       3.   The original clerk’s record was incomplete. The clerk’s record

filed failed to contain all of the summary judgment pleadings upon which the

trial court ruled and a supplemental record was requested on July 29, 2015.

       4.   Appellant also filed an Unopposed Motion with the Court of

Appeals to permit the filing of the Supplemental Clerk’s Record. The Court of

Appeals granted Appellant’s Unopposed Motion to Supplement the Clerk’s

Record on August 13, 2015.

       5.   Appellee’s counsel has stated that Appellee opposes this request

for an extension to allow time for the requested Supplemental Clerk’s Record to

be filed.

       6.   The Supplemental Clerk’s Record has not been prepared or filed.

Attached as Exhibit 1 hereto is Appellant’s counsel’s correspondence of even

date to the Harris County District Clerk requesting that the Supplemental

Clerk’s Record be RUSHED.

       7.   The extended deadline for Appellant to file his initial brief is

today, September 9, 2015.

       8.   Because the Supplemental Clerk’s Record has yet to be filed,

Appellant is unable to properly or adequately prepare Appellant’s brief and is

                                       2
requesting an extension of time until the earlier of 14-days after the

Supplemental Clerk’s Record is filed or October 15, 2015.

       9.     Mr. Cohen does not seek this extension for the purposes of delay.

Appellant seeks this extension in the interest of justice; specifically to permit

the incomplete record to be supplemented pursuant to the pending request to the

trial court clerk.

                                    PRAYER

       For all these reasons, Appellant Jay H. Cohen respectfully requests a 30-

day extension of time for filing his Appellant’s Brief from today, September 9,

2015 until the earlier of 14-days after the Supplemental Clerk’s Record is filed

with the Court of Appeals or October 15, 2015. Mr. Cohen also seeks all such

other or further relief to which he may be justly entitled.

                                        TWOMEY | MAY, PLLC

                                        /s/ George F. May/
                                        _______________________________
                                        George F. May
                                        TBA No. 24037050
                                        2 Riverway, 15th Floor
                                        Houston, Texas 77056
                                        (713) 659-0000 [Telephone]
                                        (832) 201-8485 [Telecopier]
                                        george@twomeymay.com

                                        Counsel for Appellant, Jay H. Cohen




                                         3
                    CERTIFICATE OF CONFERENCE

I certify that on September 9, 2015, I conferred with Sam Haren, co-counsel for
Appellee, via email and counsel stated that Appellee is opposed to this motion.

                                      /s/ George F. May/
                                      _______________________________
                                      George F. May



                       CERTIFICATE OF SERVICE

As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I
certify that I have served this document on counsel for Appellee as listed below
on September 9, 2015 as follows:

Walter J. Cicack
wcicack@hmgnc.com
HAWASH MEAD GASTON NEESE & CICACK, LLP
2118 Smith Street
Houston, Texas 77002
Telephone: (713) 658-9001
Facsimile: (713) 658-9011

Attorneys for Appellee Tour Partners, Ltd.

            By (check all that apply)
                                personal delivery
                                mail
                                commercial delivery service
                        X       fax, email, or electronic service


                                             /s/ George F. May/
                                             George F. May

Date: September 9, 2015


                                       4
TWOMEY | MAY, P.L.L.C.                                                      TWOMEY | MAY, P.L.L.C.
                          Attorneys at Law                                         2 Riverway, 15th Floor
                                                     George F. May                 Houston, Texas 77056
                                                     george@twomeymay.com    (713) 659-0000 – Telephone
                                                                             (832) 201-8485 – Telecopier

                                             August 9, 2015

Mr. Chris Daniel                                       Via E-File and Hand Delivery
District Clerk, Civil Division
Attn: Ms. Phyllis Washington, Deputy
Post Judgment
P.O. Box 4651
Houston, Texas 77210

RE:    Request to Rush Supplemental Clerk’s Record in Appellate Case No. 14-15-00392-CV;
       Jay Cohen v. Tour Partners, Ltd. and Preston Realty Corporation; In the Fourteenth
       Court of Appeals, Houston, Texas- Trial Court No. 2012-41051

Dear Ms. Washington:

On July 29, 2015, a request to supplement the clerk’s record in the above referenced case was
filed by Appellant Jay Cohen. The request is attached as Exhibit A.

On August 13, 2015, the Fourteenth Court of Appeals granted Mr. Cohen’s motion to
supplement the Clerk’s Record. Notice of the Court of Appeal’s Order is attached as Exhibit B.

The deadline for Mr. Cohen’s Appellant’s brief was set to be today, September 9, 2015. The
supplemental record has not been prepared or filed and Mr. Cohen is requesting that the
preparation and filing of the supplemental clerk’s record be RUSHED and fulfilled on the earliest
possible date.

Please contact me when your office has calculated the estimated cost of the supplemental record
and we will hand-deliver payment the same day.

Thank you for your assistance and cooperation in this urgent matter. Please contact me if you
have any questions.

Very truly yours,

/s/ George F. May/

George F. May

Counsel for Appellant Jay Cohen

Cc:    Walter Cicack (via e-mail to wcicack@hmgnc.com)
       Sam Haren (via e-mail to sharen@hmgnc.com)
EXHIBIT A
                                                                                                       7/29/2015 4:30:28 PM
                                                                                  Chris Daniel - District Clerk Harris County
                                                                                                     Envelope No. 6281005
                                                                                                          By: Duane Gilmore
                                                                                               Filed: 7/29/2015 4:30:28 PM

                                           NO. 2013-41051

JAY COHEN,                                     §               IN THE DISTRICT COURT OF
     Plaintiff                                 §
                                               §
v.                                             §               HARRIS COUNTY, TEXAS
                                               §
TOUR PARTNERS, LTD., and                       §
PRESTON REALTY CORPORATION,                    §




                                                                               k
     Defendants                                §               269th JUDICIAL DISTRICT




                                                                            ler
                                                                         tC
                 REQUEST FOR SUPPLEMENTAL CLERK’S RECORD




                                                                     ric
TO THE HONORABLE COURT:




                                                                  ist
       COMES NOW Plaintiff Jay Cohen pursuant to Rule 34.5 of the Texas Rule of Appellate




                                                               lD
                                                          nie
Procedure to respectfully request that the clerk prepare a supplement to the record in the appeal

                                                      Da
from the above numbered and styled case. The supplemental record should be certified and
                                                   is
delivered to the Fourteenth Court of Appeals in Appeal Case 14-15-00392-CV.
                                                   hr
                                             C



       Mr. Cohen requests that the following be included in the supplemental record:
                                          of




       Image No. 65211494 Plaintiff Jay Cohens Notice of Appeal - filed on 04/28/2015; 2 pages
                                       e




       Image No. 64452951 Plaintiff's Motion for New Trial - filed on 02/27/2015; 8 pages
                                   ffic




       Image No. 64023492 ORDER SIGNED GRANTING ENTRY OF TEMPORARY ORDERS -
       filed on 01/28/2015; 5 pages
                              yO




       Image No. 63171721 Plaintiff Jay Cohen's motion for default judgment against defendant Preston
       Realty Corporation - filed on 11/13/2014; 5 pages
       Image No. 63171722 Exhibit A - filed on 11/13/2014; 2 pages
                          op




       Image No. 63171723 Exhibit B - filed on 11/13/2014; 2 pages
                       C




       Image No. 63171724 Exhibit C - filed on 11/13/2014; 3 pages
       Image No. 63171725 Exhibit C-1 - filed on 11/13/2014; 3 pages
                    ial




       Image No. 63171726 Exhibit C-2 - filed on 11/13/2014; 4 pages
                 fic




       Image No. 63093159 Tour Partner's motion to strike and special exceptions - filed on
       11/07/2014; 4 pages
              of




       Image No. 63171651 Proposed Order - filed on 11/13/2014; 1 page
          Un




       Image No. 63102481 Notice of submission - filed on 11/07/2014; 1 page
       Image No. 63084911 Tour Partner's reply in support of its traditional and no evidence motion for
       summary judgment and objections to Cohen's summary judgment evidence - filed on 11/06/2014;
       17 pages
       Image No. 63084913 Exhibit 20 - filed on 11/06/2014; 12 pages
       Image No. 63084914 Exhibit 21 - filed on 11/06/2014; 19 pages
       Image No. 63084915 Exhibit 22 - filed on 11/06/2014; 7 pages
       Image No. 63030179 Plaintiff's objection and response to defendant's traditional and No-
       evidence motion for summary judgment - filed on 11/03/2014; 27 pages
Image No. 63030198 Ex. 16 - filed on 11/03/2014; 8 pages
Image No. 63030180 Exhibit A - filed on 11/03/2014; 6 pages
Image No. 63037684 Exhibit A - filed on 11/03/2014; 2 pages
Image No. 63030181 Exhibit A-1 - filed on 11/03/2014; 15 pages
Image No. 63030192 Exhibit A-10 - filed on 11/03/2014; 22 pages
Image No. 63030193 Exhibit A-11 - filed on 11/03/2014; 3 pages
Image No. 63030194 Exhibit A-12 - filed on 11/03/2014; 5 pages
Image No. 63030195 Exhibit A-13 - filed on 11/03/2014; 5 pages
Image No. 63030196 Exhibit A-14 - filed on 11/03/2014; 6 pages
Image No. 63030197 Exhibit A-15 - filed on 11/03/2014; 3 pages




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Image No. 63030199 Exhibit A-16a - filed on 11/03/2014; 3 pages
Image No. 63030200 Exhibit A-17 - filed on 11/03/2014; 3 pages




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Image No. 63030201 Exhibit A-18 - filed on 11/03/2014; 9 pages
Image No. 63030202 Exhibit A-19 - filed on 11/03/2014; 5 pages




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Image No. 63030182 Exhibit A-2 - filed on 11/03/2014; 15 pages
Image No. 63030203 Exhibit A-20 - filed on 11/03/2014; 32 pages




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Image No. 63030204 Exhibit A-21 - filed on 11/03/2014; 5 pages




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Image No. 63030205 Exhibit A-22 - filed on 11/03/2014; 6 pages
Image No. 63030206 Exhibit A-23 - filed on 11/03/2014; 5 pages



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Image No. 63030207 Exhibit A-24 - filed on 11/03/2014; 6 pages
Image No. 63030208 Exhibit A-25 - filed on 11/03/2014; 6 pages
                                               Da
Image No. 63030209 Exhibit A-26 - filed on 11/03/2014; 7 pages
Image No. 63030210 Exhibit A-27 - filed on 11/03/2014; 7 pages
                                            is
Image No. 63030211 Exhibit A-28 - filed on 11/03/2014; 6 pages
                                         hr

Image No. 63030183 Exhibit A-3 - filed on 11/03/2014; 2 pages
Image No. 63037683 EXHIBIT A-4 - filed on 11/03/2014; 3 pages
                                      C



Image No. 63030185 Exhibit A-5 - filed on 11/03/2014; 4 pages
                                   of
                                e




Image No. 63030186 Exhibit A-6 - filed on 11/03/2014; 5 pages
Image No. 63030187 Exhibit A-7 - filed on 11/03/2014; 4 pages
                            ffic




Image No. 63030188 Exhibit A-8 - filed on 11/03/2014; 4 pages
                       yO




Image No. 63030189 Exhibit A-9 - filed on 11/03/2014; 3 pages
Image No. 63030190 Exhibit A-9a - filed on 11/03/2014; 7 pages
Image No. 63030191 Exhibit A-9b - filed on 11/03/2014; 6 pages
                   op




Image No. 63030212 Exhibit B - filed on 11/03/2014; 2 pages
                C




Image No. 63030213 Exhibit B-1 - filed on 11/03/2014; 4 pages
Image No. 63030214 Exhibit B-2 - filed on 11/03/2014; 7 pages
            ial




Image No. 63030215 Exhibit C - filed on 11/03/2014; -145 pages
         fic




Image No. 63093155 Proposed Order - filed on 11/07/2014; 2 pages
Image No. 63030217 Plaintiff's objection and response to defendant's traditional and No-
       of




evidence motion for summary judgment - filed on 11/03/2014; 27 pages
  Un




Image No. 63030236 Exhibit 16 - filed on 11/03/2014; 8 pages
Image No. 63030218 Exhibit A - filed on 11/03/2014; 6 pages
Image No. 63030219 Exhibit A-1 - filed on 11/03/2014; 15 pages
Image No. 63030230 Exhibit A-10 - filed on 11/03/2014; 22 pages
Image No. 63030231 Exhibit A-11 - filed on 11/03/2014; 3 pages
Image No. 63030232 Exhibit A-12 - filed on 11/03/2014; 5 pages
Image No. 63030233 Exhibit A-13 - filed on 11/03/2014; 5 pages
Image No. 63030234 Exhibit A-14 - filed on 11/03/2014; 6 pages
Image No. 63030235 Exhibit A-15 - filed on 11/03/2014; 3 pages
Image No. 63030237 Exhibit A-16a - filed on 11/03/2014; 3 pages


                                           2
Image No. 63030238 Exhibit A-17 - filed on 11/03/2014; 3 pages
Image No. 63030239 Exhibit A-18 - filed on 11/03/2014; 9 pages
Image No. 63030240 Exhibit A-19 - filed on 11/03/2014; 5 pages
Image No. 63030220 Exhibit A-2 - filed on 11/03/2014; 15 pages
Image No. 63030241 Exhibit A-20 - filed on 11/03/2014; 32 pages
Image No. 63030242 Exhibit A-21 - filed on 11/03/2014; 5 pages
Image No. 63030243 Exhibit A-22 - filed on 11/03/2014; 6 pages
Image No. 63030244 Exhibit A-23 - filed on 11/03/2014; 5 pages
Image No. 63030245 Exhibit A-24 - filed on 11/03/2014; 6 pages
Image No. 63030246 Exhibit A-25 - filed on 11/03/2014; 6 pages




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Image No. 63030247 Exhibit A-26 - filed on 11/03/2014; 7 pages
Image No. 63030248 Exhibit A-27 - filed on 11/03/2014; 7 pages




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Image No. 63030249 Exhibit A-28 - filed on 11/03/2014; 6 pages
Image No. 63030221 Exhibit A-3 - filed on 11/03/2014; 2 pages




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Image No. 63030222 Exhibit A-4 - filed on 11/03/2014; 5 pages
Image No. 63030223 Exhibit A-5 - filed on 11/03/2014; 4 pages




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Image No. 63030224 Exhibit A-6 - filed on 11/03/2014; 5 pages




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Image No. 63030225 Exhibit A-7 - filed on 11/03/2014; 4 pages
Image No. 63030226 Exhibit A-8 - filed on 11/03/2014; 4 pages



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Image No. 63030227 Exhibit A-9 - filed on 11/03/2014; 3 pages
Image No. 63030228 Exhibit A-9a - filed on 11/03/2014; 7 pages
                                              Da
Image No. 63030229 Exhibit A-9b - filed on 11/03/2014; 6 pages
Image No. 63030250 Exhibit B - filed on 11/03/2014; 2 pages
                                           is
Image No. 63030251 Exhibit B-1 - filed on 11/03/2014; 4 pages
                                        hr

Image No. 63030252 Exhibit B-2 - filed on 11/03/2014; 7 pages
Image No. 63030253 Exhibit C - filed on 11/03/2014; 145 pages
                                     C



Image No. 62928870 Tour Partners Response to Plaintiff's Unopposed Motion to Substitute
                                  of




Counsel - filed on 10/27/2014; 2 pages
                                e




Image No. 62861852 Plaintiff Jay Cohen's unopposed Motion to Substitute counsel - filed on
10/22/2014; 4 pages
                            ffic




Image No. 62861853 proposed order granting motion to substitute counsel - filed on 10/22/2014;
                      yO




2 pages
Image No. 62821118 Tour Partners' Traditional and No-Evidence Motion for Summary
Judgment - filed on 10/17/2014; 36 pages
                   op




Image No. 62821121 Exhibit 1 - filed on 10/17/2014; 76 pages
                C




Image No. 62821130 Exhibit 10 - filed on 10/17/2014; 3 pages
Image No. 62821131 Exhibit 11 - filed on 10/17/2014; 3 pages
            ial




Image No. 62821132 Exhibit 12 - filed on 10/17/2014; 4 pages
         fic




Image No. 62821133 Exhibit 13 - filed on 10/17/2014; 4 pages
Image No. 62821134 Exhibit 14 - filed on 10/17/2014; 4 pages
      of




Image No. 62821135 Exhibit 15 - filed on 10/17/2014; 7 pages
  Un




Image No. 62821136 Exhibit 16 - filed on 10/17/2014; 15 pages
Image No. 62821137 Exhibit 17 - filed on 10/17/2014; 8 pages
Image No. 62821138 Exhibit 18 - filed on 10/17/2014; 9 pages
Image No. 62821139 Exhibit 19 - filed on 10/17/2014; 5 pages
Image No. 62821122 Exhibit 2 - filed on 10/17/2014; 5 pages
Image No. 62821123 Exhibit 3 - filed on 10/17/2014; 3 pages
Image No. 62821124 Exhibit 4 - filed on 10/17/2014; 19 pages
Image No. 62821125 Exhibit 5 - filed on 10/17/2014; 12 pages
Image No. 62821126 Exhibit 6 - filed on 10/17/2014; 6 pages
Image No. 62821127 Exhibit 7 - filed on 10/17/2014; 45 pages


                                          3
Image No. 62821128 Exhibit 8 - filed on 10/17/2014; 2 pages
Image No. 62821129 Exhibit 9 - filed on 10/17/2014; 4 pages
Image No. 62663391 Motion for Withdrawal of Counsel - filed on 10/07/2014; 2 pages
Image No. 62663392 Docket Control Order - filed on 10/07/2014; 1 pages
Image No. 62690110 Exhibit 03 - filed on 10/09/2014; 2 pages
Image No. 62305356 ORDER SIGNED GRANTING ENTRY OF TEMPORARY
ORDERS - filed on 08/25/2014; 1 pages
Image No. 61683924 Discovery Control Plan - filed on 07/23/2014; 1 pages
Image No. 61512462 Plaintiffs Ellington F Holdings LLC's and R. David Denenberg's
Objections and Response in Opposition to Defendant Tour Partners, Ltd.'s Motion to Consolidate




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- filed on 07/10/2014; 7 pages
Image No. 61519437 Supplement to Plaintiff's Response to Defendant, Tour Partners, Ltd.'s,




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Motion for Judicial Review of Documentation or Instrument Purporting to Create a Lien, Claim
or Interest in Real Property - filed on 07/10/2014; 3 pages




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Image No. 61519438 Plaintiffs Ellington F Holdings LLC's and R. David Denenburg's Amended
Objections and Response in Opposition to defendant Tour Partners, Ltd.'s Motion to Consolidate




                                                             ist
- filed on 07/10/2014; 7 pages




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Image No. 61519439 Exhibit 1 - filed on 07/10/2014; 61 pages
Image No. 61519440 Exhibit 2 - filed on 07/10/2014; 7 pages



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Image No. 61519441 Exhibit 3 - filed on 07/10/2014; 15 pages
Image No. 61519442 Proposed Order - filed on 07/10/2014; 1 pages
                                                 Da
Image No. 61528236 Plaintiff's response to defendant, Tour Partners, LTD's motion for judicial
review of documentation or instrument purporting to create a lien, claim or interest in real
                                              is
property - filed on 07/10/2014; 8 pages
                                           hr

Image No. 61528242 Exhibit A - filed on 07/10/2014; 6 pages
Image No. 61528243 Exhibit B - filed on 07/10/2014; 9 pages
                                       C



Image No. 61528244 Exhibit C - filed on 07/10/2014; 5 pages
                                    of




Image No. 61528245 Proposed order - filed on 07/10/2014; 1 pages
                                  e




Image No. 61528501 Plaintiff's response to defendant, Tour Partners, LTD's motion to
consolidate - filed on 07/10/2014; 2 pages
                             ffic




Image No. 61528504 Proposed order - filed on 07/10/2014; 1 pages
                        yO




Image No. 60738990 Defendant Tour Partners, ltd.'s motion to consolidate - filed on 05/09/2014;
3 pages
Image No. 60738991 Exhibit 1 - filed on 05/09/2014; 1 pages
                    op




Image No. 60738992 Proposed order - filed on 05/09/2014; 2 pages
                 C




Image No. 60741538 Defendant Tour Partners motion for judicial review of documentation or
instrument purporting to create a lien, claim, or interest in real property - filed on 05/09/2014; 6
             ial




pages
          fic




Image No. 60741541 Exhibit 1, Subordination of Lien - filed on 05/09/2014; 4 pages
Image No. 60741543 Proposed order - filed on 05/09/2014; 2 pages
       of




Image No. 60745044 Exhibit a to Defendants Second amended answer and original counterclaim
   Un




- filed on 05/09/2014; 4 pages
Image No. 58939261 Defendants withdrawal of defendants amended motion to dismiss directed
to plaintiffs first amended petition - filed on 12/24/2013 2 pages
Image No. 58636392 Plaintiff's second amended petition - filed on 12/06/2013 8 pages
Image No. 58636433 Plaintiff's second amended petition - filed on 12/06/2013 8 pages
Image No. 586Image No. 62602 Plaintiff's Response to Tour Partners, Ltd.'s Amended Motion
to Dismiss - filed on 12/06/2013 9 pages
Image No. 58388466 Defendant's Amended Motion to Dismiss Directed to Plaintiff's
First Amended Petition - filed on 11/21/2013 6 pages
Image No. 57990831 Plaintiffs Response to Defendants Motion to Dismiss - filed on 10/25/2013


                                             4
       4 pages
       Image No. 58052445 Plaintiff's First Amended Petition - filed on 10/25/2013 7 pages
       Image No. 58052446 Exhibit E - filed on 10/25/2013 3 pages
       Image No. 57672083 Defendants Motion to Dismiss - filed on 10/07/2013 9 pages
       Image No. 57672084 Original Answer Subject to Motion to Dismiss - filed on 10/07/2013 4
       pages


       Please expedite this request as the appeal is currently pending. Mr. Cohen will pre-pay




                                                                             k
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the estimated cost of the supplemental record immediately.




                                                                       tC
       :                                     Respectfully submitted,




                                                                   ric
                                             TWOMEY | MAY, PLLC




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                                             /s/ George F. May/
                                             _______________________________



                                                        nie
                                             George F. May
                                             State Bar No. 24037050
                                                    Da
                                             2 Riverway, 15th Floor
                                                 is
                                             Houston, Texas 77056
                                             (713) 659-0000 Telephone
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                                             (832) 201-8485 Facsimile
                                           C



                                             george@twomeymay.com
                                        of




                                             Attorneys for Plaintiff Jay Cohen
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                                                5
                               CERTIFICATE OF SERVICE

As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I certify that I have
served this document on all other parties, which are listed below on July 29, 2015 as follows:

Walter J. Cicack
wcicack@hmgnc.com
HAWASH MEAD GASTON NEESE & CICACK, LLP
2118 Smith Street




                                                                            k
Houston, Texas 77002




                                                                         ler
Telephone: (713) 658-9001




                                                                      tC
Facsimile: (713) 658-9011




                                                                  ric
Attorneys for Defendant Tour Partners, Ltd.




                                                               ist
              By (check all that apply)




                                                            lD
                                     personal delivery



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                                     mail
                                     commercial delivery service
                             X                      Da
                                     fax, email, or electronic service
                                                 is
                                               hr


                                              /s/ George F. May/
                                           C



                                                     George F. May
                                        of




Date: July 28, 2015
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                                                6
EXHIBIT B
                                                                          FILE COPY




       FOURTEENTH COURT OF APPEALS
       301 Fannin, Suite 245
       Houston, Texas 77002
                                                   Thursday, August 13, 2015

RE:    Case No. 14-15-00392-CV

Style: Jay Cohen
    v. Tours Partners, Ltd. and Preston Realty Corporation

     Please be advised that on this day the Court       GRANTED   APPELLANT’S
motion to supplement the record in the above cause.


T. C. Case # 2013-41051                              Christopher Prine, Clerk

                          Harris County, District Clerk, Civil Division
                          Harris County District Clerk - Civil
                          201 Caroline, Ste 420
                          Houston, TX 77002
                          DELIVERED VIA E-MAIL




       FOURTEENTH COURT OF APPEALS
       301 Fannin, Suite 245
       Houston, Texas 77002
                                                   Thursday, August 13, 2015

RE:    Case No. 14-15-00392-CV

Style: Jay Cohen
    v. Tours Partners, Ltd. and Preston Realty Corporation

     Please be advised that on this day the Court       GRANTED   APPELLANT’S
motion to supplement the record in the above cause.


T. C. Case # 2013-41051                              Christopher Prine, Clerk

                          Harris County, District Clerk, Civil Division
                          Harris County District Clerk - Civil
                          201 Caroline, Ste 420
                          Houston, TX 77002
                          DELIVERED VIA E-MAIL
Exhibit 4
     CertifiedDocumentNumber:63124687-Page1of5




Exhibit 5
                                                         7A
                                                         Pgs-5
CertifiedDocumentNumber:63124687-Page2of5
CertifiedDocumentNumber:63124687-Page3of5
CertifiedDocumentNumber:63124687-Page4of5
CertifiedDocumentNumber:63124687-Page5of5
     I, Chris Daniel, District Clerk of Harris
     County, Texas certify that this is a true and
     correct copy of the original record filed and or
     recorded in my office, electronically or hard
     copy, as it appears on this date.
     Witness my official hand and seal of office
     this March 30, 2015


     Certified Document Number:        63124687 Total Pages: 5




     Chris Daniel, DISTRICT CLERK
     HARRIS COUNTY, TEXAS




In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
            Un
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Exhibit 7
Sam Haren
From:                                 Walter Cicack
Sent:                                 Monday, November 16, 2015 7:28 PM
To:                                   Sam Haren; George May
Subject:                              RE: Status of Appeal


George, would you at least give us the professional courtesy of a response? Thank you.  
 
Walter Cicack 
(713) 658‐9003 (direct) 
 
From: Sam Haren  
Sent: Monday, November 16, 2015 11:02 AM 
To: Walter Cicack <wcicack@hmgnc.com>; George May <george@twomeymay.com> 
Subject: RE: Status of Appeal 
 
George,

After the expiration of last Friday’s deadline, Walter asked me to touch base with you regarding your appeal. Do you still
intend to go forward with Cohen’s remaining case?

Thanks,

Sam

From: Walter Cicack  
Sent: Tuesday, November 10, 2015 10:24 AM 
To: George May <george@twomeymay.com> 
Cc: Sam Haren <sharen@hmgnc.com> 
Subject: Status of Appeal 
 
George, it appears that you decided not to file a brief in the appeal of Judge’s Hinde’s judgment despite the fact that you 
said you were going to do so and instructed me to inform the court of appeals that you were going to do so.  I will not 
even ask you what you intend to do in the other appeal since I cannot rely on your answer.  But I do have a simple 
question‐‐ do you oppose our motion asking for leave to allow us to file our brief after you file your brief? As you know, 
if Cohen does not pursue the appeal, our appeal point is moot and briefing would not be required. Please let me know 
your position on this by 3 pm tomorrow. If you have any questions, please let me know. Thank you for your 
consideration.  
 
Walter J. Cicack  
Partner  




                                                                    
2118 Smith Street | Houston, TX 77002
tel (713) 658-9003 | mobile (713) 299-2127
fax (713) 658-9011 

website | vCard | map | email  
 
This email may be a privileged communication. If you are not the intended recipient, please delete it.
 




                                                                                   1

                                                                       Exhibit 8
 
 




    2
Sam Haren
From:                                 Walter Cicack
Sent:                                 Tuesday, November 10, 2015 10:24 AM
To:                                   George May
Cc:                                   Sam Haren
Subject:                              Status of Appeal


George, it appears that you decided not to file a brief in the appeal of Judge’s Hinde’s judgment despite the fact that you 
said you were going to do so and instructed me to inform the court of appeals that you were going to do so.  I will not 
even ask you what you intend to do in the other appeal since I cannot rely on your answer.  But I do have a simple 
question‐‐ do you oppose our motion asking for leave to allow us to file our brief after you file your brief? As you know, 
if Cohen does not pursue the appeal, our appeal point is moot and briefing would not be required. Please let me know 
your position on this by 3 pm tomorrow. If you have any questions, please let me know. Thank you for your 
consideration.  
 
Walter J. Cicack  
Partner  




                                                                    
2118 Smith Street | Houston, TX 77002
tel (713) 658-9003 | mobile (713) 299-2127
fax (713) 658-9011 

website | vCard | map | email  
 
This email may be a privileged communication. If you are not the intended recipient, please delete it.
 




 
 




                                                                                   1
                                ACCEPTED
                            14-15-00392-CV
            FOURTEENTH COURT OF APPEALS
                         HOUSTON, TEXAS
                        7/8/2015 4:55:58 PM
                      CHRISTOPHER PRINE
                                     CLERK




Exhibit 9
