                                                                                                       ACCEPTED
                                                                                                   04-15-00114-CV
                                                                                       FOURTH COURT OF APPEALS
                                                                                            SAN ANTONIO, TEXAS
                                                                                              8/12/2015 9:43:15 AM
                                                                                                    KEITH HOTTLE
                                                                                                            CLERK

                                      No. 04-15-00114-CV

                                                                                FILED IN
                                                                         4th COURT OF APPEALS
                                  In the Fourth Court of Appeals          SAN ANTONIO, TEXAS
                                        San Antonio, Texas               08/12/15 9:43:15 AM
                                                                           KEITH E. HOTTLE
                                                                                 Clerk
    HARI PRASAD KALAKONDA AND LATHA KALAKONDA, Appellants

                                                v.

                              ASPRI INVESTMENTS, LLC, Appellee


                                From 45th Judicial District Court
                         Bexar County, Texas, Cause No: 2014-CI-16394,
                          the Honorable Judge Karen H. Pozza, presiding


                  APPELLEE ASPRI INVESTMENTS, LLC’S
             MOTION TO STRIKE PAGES FROM CLERK’S RECORD


         Appellee Aspri Investments, LLC (“Aspri”) moves to strike pages 236

through 496 of the Clerk’s Record.

         The trial court entered judgment confirming an arbitration award on

December 1, 2014. CR175-76. Appellants Mr. and Mrs. Kalakonda’s motion for

rehearing 1 was denied in a written order signed December 23, 2014. On December




1
       No written motion for rehearing appears in the Clerk’s Record. A transcript of the hearing
of December 23, 2014 is in the appellate record; the trail court declined to hear oral argument,
informing the parties she would consider and rule on the written motion.

20140366.20140366/2199612.1
30 and 31, respectively, Appellants filed what are styled Motion to Modify and

Correct Judgment (CR224-30) and Motion for New Trial (CR231-33). There is no

indication in the record that the trial court conducted a hearing on either of the latter

two motions. No modified judgment issued; there is no written order overruling the

(12/31/14) Motion for New Trial. See Tex. R. Civ. P. 329b (b).

         By letter dated March 24, 2015 2 Appellants sent and the District Clerk filed

what is described as their “additional attached record for communicating to the 4th

court of appeals.” CR236. The following 259 pages do not properly comprise part

of the record in this case. This bundle of 259 pages—more than half of the Clerk’s

Record—was not in the trial court’s file when judgment was signed or when any

timely post judgment motion was considered.

         Appellants made no effort to have their “additional attached record” admitted

as evidence. Without need to determine whether any particular part of the material

does or does not appear elsewhere in the record, Aspri moves to strike pages 236

through 496 of the Clerk’s Record and all references thereto in any briefing in this

case.



2
        Assuming the December 31 motion was a permitted amended motion for new trial (Tex.
R. Civ. P. 329(b)), March 24 is more than 105 days after the December 1, 2014 judgment. Even if
properly asked to do so, the trial court had no jurisdiction to consider any “new evidence”
submitted at that late date. See Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310
(Tex. 2000) (citing Philbrook v. Berry, 683 S.W.2d 378, 379 (Tex. 1985) (a timely filed motion
extends the trial court’s jurisdiction over its judgment up to an additional seventy-five days,
depending on when or whether the court acts on the motions)).
                                                2
20140366.20140366/2199612.1
         Aspri respectfully asks the Court to strike from the record all materials

comprising pages 236 through 496 of the Clerk’s Record and for all other relief to

which Aspri is entitled.

                                       Respectfully submitted,

                                       HIRSCH & WESTHEIMER, P.C.

                                       By: /s/ Michael D. Conner
                                         Michael D. Conner
                                         State Bar No. 04688650
                                         Email: mconner@hirschwest.com
                                         Eric Lipper
                                         State Bar No. 12399000
                                         Email: elipper@hirschwest.com
                                         1415 Louisiana, 36th Floor
                                         Houston, Texas 77002
                                         Telephone: (713) 220-9162
                                         Facsimile: (713) 223-9319

                                       ATTORNEYS FOR APPELLEE
                                       ASPRI INVESTMENTS, LLC




                                         3
20140366.20140366/2199612.1
                              CERTIFICATE OF COMPLIANCE

      I do hereby certify that this document complies with the typeface requirements
of Tex. R. App. P. 9.4(e) because it has been prepared in a proportionally spaced
typeface using Microsoft Word in 14 point Times New Roman.

                                                 /s/ Michael D. Conner
                                            Michael D. Conner

                                CERTIFICATE OF SERVICE

       I hereby certify that on this 12th day of August, 2015, a true and correct copy
of the forgoing was served as follows:


                                      Hari Prasad Kalakonda
                                        Latha Kalakonda
                                           Shubha, LLC
                                      5002 Newcastle Lane
                                     San Antonio, TX 78249
                              Via E-Serve: smfoodmart@yahoo.com,

                                                 /s/ Michael D. Conner
                                            Michael D. Conner




                                              4
20140366.20140366/2199612.1
