                                                                                      ACCEPTED
                                                                                  04-15-00307-CV
                                                                      FOURTH COURT OF APPEALS
                                                                           SAN ANTONIO, TEXAS
                                                                             6/3/2015 12:17:06 PM
                                                                                   KEITH HOTTLE
                                                                                           CLERK

                          NO. 04-15-00307-CV

                   IN THE COURT OF APPEALS           FILED IN
                                              4th COURT OF APPEALS
               FOURTH COURT OF APPEALS DISTRICTSAN ANTONIO, TEXAS
                      SAN ANTONIO, TEXAS      06/3/2015 12:17:06 PM
                                                             KEITH E. HOTTLE
                                    ***                           Clerk


             AUTOZONE, INC., AND AUTOZONERS, L.L.C.,
                                          Appellants

                                    V.

                           MARIO FLORES,
                                                      Appellee

                                    ***

    RESPONSE TO COURT ORDER REGARDING PAYMENT FOR
                    CLERK’S RECORD

                                    ***

BRETT REYNOLDS & ASSOCIATES, P.C.         THE LAW OFFICE OF
Brett T. Reynolds                         JACQUELINE M. STROH, P.C.
State Bar No. 16795500                    Jacqueline M. Stroh
btreynolds@btrlaw.com                     State Bar No. 00791747
P. Brook Swilley                          jackie@strohappellate.com
State Bar No. 24041997                    10101 Reunion Place, Suite 600
pbswilley@btrlaw.com                      San Antonio, Texas 78216
1250 N.E. Loop 410, Suite 420             (210) 477-7416
San Antonio, Texas 78209                  (210) 477-7466 (telecopier)
(210) 805-9799
(210) 805-9654 (telecopier)


                    ATTORNEYS FOR APPELLANTS
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

       On May 29, 2015, the Court issued an Order requiring Appellants

AutoZone, Inc. and AutoZoners, L.L.C. to provide written proof to the Court that

they have paid the clerk’s fee for preparation of the clerk’s record or that they have

made satisfactory payment arrangements with the clerk for its preparation. In

response, the AutoZone Appellants show unto the Court the following.

I.     Appellants Filed a Request for Preparation of the Record Requesting
       that the Clerk Instruct Them When Payment Was Due

       On May 15, 2015, the AutoZone Appellants filed their Notice of Appeal

with the Starr County District Clerk and subsequently filed a copy of that notice

with this Court on May 18, 2015.1              Also on May 15, 2015, the AutoZone

Appellants filed a Request for Preparation of the Clerk’s Record with the Starr

County District Clerk.        (See Defendants’ Request for Preparation of Clerk’s

Record, a copy of which is attached hereto as Exhibit “A”). Appellants directed

the request to Brendaly Guerrero, the individual identified by Starr County District

Clerk staff to be the person in charge of preparing appellate records for civil cases.

In the body of the record request, Appellants specifically recited the following:




1
  The AutoZone Appellants subsequently filed an Amended Notice of Appeal on May 18, 2015
to add a missing attachment to the original notice of appeal. They filed a copy of that Amended
Notice of Appeal with the Fourth Court on the same date.
                                              2
(See Exhibit “A”).

II.   Once Informed of the Amount Due, Appellants Forwarded Payment;
      and the District Clerk Has Acknowledged Its Receipt

      On May 21, 2015, the Thursday before the Memorial Day Holiday weekend,

Ms. Guerrero forwarded a letter to litigation counsel requesting payment for the

clerk’s record in the amount of $400.00. (See Invoice from the Starr County

District Clerk, a copy of which is attached hereto as Exhibit “B”) On May 26,

2015, the day following the Memorial Day Holiday weekend, litigation counsel

issued a check to the Starr County District Clerk in the amount of $400.00 for full

and complete payment of the fee for preparation of the clerk’s record. (See Stub

for Check Issued to Starr County District Clerk, a copy of which is attached hereto

as Exhibit “C”) After having been informed that the district clerk did not receive

the initial payment, litigation counsel issued a second check in the amount of

$400.00 for full and complete payment of the fee for preparation of the clerk’s

record. (See Stub for Second Check Issued to Starr County District Clerk, a copy

of which is attached hereto as Exhibit “D”) On June 2, 2015, the Starr County

                                        3
District Clerk confirmed receipt of payment in full for preparation of the clerk’s

record and forwarded to litigation counsel a receipt for full payment. (See Receipt

from the Starr County District Clerk, a copy of which is attached hereto as Exhibit

“E”) As a result, the AutoZone Appellants have provided this Court with the

necessary proof demonstrating payment of the fee for preparation and filing of the

clerk’s record with the Court in this appeal. (See also Affidavit of P. Brook

Swilley, attached hereto as Exhibit “F”) The Court should, therefore, retain this

appeal on the Court’s docket.

                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellants AutoZone, Inc. and

AutoZoners, L.L.C. respectfully request that the Court acknowledgment their

payment of the fee for preparation of the clerk’s record and retain this appeal on

the Court’s docket. Appellants also request such other and further relief to which

they are entitled.

                                Respectfully submitted,

BRETT REYNOLDS & ASSOCIATES, P.C.               THE LAW OFFICE OF
Brett T. Reynolds                               JACQUELINE M. STROH, P.C.
State Bar No. 16795500                          Jacqueline M. Stroh
btreynolds@btrlaw.com                           State Bar No. 00791747
P. Brook Swilley                                jackie@strohappellate.com
State Bar No. 24041997                          10101 Reunion Place, Suite 600
pbswilley@btrlaw.com                            San Antonio, Texas 78216
1250 N.E. Loop 410, Suite 420                   (210) 477-7416
San Antonio, Texas 78209                        (210) 477-7466 (telecopier)
(210) 805-9799
                                          4
(210) 805-9654 (telecopier)

                      By:     /s/ Jacqueline M. Stroh
                                  Jacqueline M. Stroh

                    ATTORNEYS FOR APPELLANTS
                AUTOZONE, INC. AND AUTOZONERS, L.L.C.

                         CERTIFICATE OF SERVICE

      I certify that a true copy of the foregoing Response was on this 3rd day of

June, 2015, served by in accordance with the Texas Rules of Appellate Procedure

on the following counsel of record:

      Jaime M. Lynn
      jlynn@carlsonattorneys.com
      Kiara Martinez
      kmartinez@carlsonattorneys.com
      THE CARLSON LAW FIRM, P.C.
      11606 North Interstate Highway 35
      Austin, Texas 78753
      -and-
      400 West Jasper Road
      Killeen, Texas 76542
      Attorneys for Appellee



                                                    /s/ Jacqueline M. Stroh
                                                    Jacqueline M. Stroh




                                          5
Filed: 5/15/2015 11:43:13 AM
Eloy R. Garcia, District Clerk
Starr County, Texas

Brendaly Guerrero
2.     Defendants' Original Answer, filed on February 10, 2015;

3.     Defendants' Motion to Compel Arbitration, filed on March 12, 2015;

4.     Notice of Hearing on Defendants' Motion to Compel Arbitration, signed on March
       18, 2015;

5.     Plaintiffs Response to Defendants' Motion to Compel Arbitration, filed on March
       30, 2015;

6.     Defendants' Reply to Plaintiffs Response to Motion to Compel Arbitration, filed
       on April 10, 2015;

7.     Plaintiffs Supplemental Evidence for the Motion to Compel Arbitration Hearing
       April 13, 2015, filed on April 16, 2015;

8.     Defendants' Objection to and Motion to Strike Plaintiffs Supplemental Evidence
       Submitted in Response to Defendants' Motion to Compel Arbitration, filed on
       April 16, 2015;

9.     Order denying "Defendants' Motion to Compel/Enforce Arbitration," signed on
       April 27, 2015 ;

10.    Defendants' Notice of Appeal, filed May 15, 2015;

11.    Correspondence to Mr. Ramiro Hernandez, Official Court Reporter for the 229th
       Judicial District Court, requesting preparation of the reporter's record, filed May
       15, 2015;

12.    This Request for Preparation of Clerk's Record, filed May 15, 2015.

       The Defendants hereby make satisfactory arrangements to pay for the record

pursuant to TEX. R. APP. P. 35.3(a)(2) by offering to pay for the record's preparation,

including payment of a deposit prior to preparation, immediately upon notification and

request by the Starr County District Clerk's office. Defendants hereby reserve their right

to request any additional portion pursuant to TEX. R. APP. P. 34.S(c).




                                             2
       The record is due to be filed with the Fourth Court of Appeals, sitting in San

Antonio, no later than May 27, 2015. See TEX. R. APP. P. 35.l(b); see also TEX. R. APP.

P. 4.l(a). Should the district clerk need any assistance with this Request for Preparation

of the Clerk's Record, and/or if any of the items requested above cannot be located, the

Defendants request that the district clerk contact them through their counsel listed below

pursuant to TEX. R. APP. P. 34.S(h).

                                                Respectfully submitted,

                                                Brett T. Reynolds
                                                State Bar No. 16795500
                                                btreynolds@btrlaw.com
                                                P. Brook Swilley
                                                State Bar No. 24041997
                                                pbswilley@btrlaw.com
                                                BREIT REYNOLDS & ASSOCIATES, P .C.
                                                1250 N.E. Loop 410, Suite 420
                                                San Antonio, Texas 78209
                                                (210) 805-9799
                                                (210) 805-9654 (telecopier)

                                                By:    Isl P. Brook Swilley
                                                       P. Brook Swilley

                                                ATTORNEYS FOR DEFENDANTS,
                                                AUTOZONE, INC. AND
                                                AUTOZONERS, L.L.C.

                            CERTIFICATE OF SERVICE

       I HEREBY CERTIFY that a true and correct copy of the foregoing request was
served on the following counsel of record in accordance with the Texas Rules of Civil
Procedure on this, the 15th day of May, 2015:

      Jaime M. Lynn
      jlynn@carlsonattomeys.com
      Kiara Martinez
      Ianartinez@carlsonattomeys.com


                                            3
THE CARLSON LAW FIRM, P.C.
400 West Jasper Road
Killeen, Texas 76542
-and-
11606 North Interstate Highway 35
Austin, Texas 78753
Attorneys for Plaint(ff


                                        /s/ P. Brook Swilley
                                        P. Brook Swilley




                                    4
From:STARR CO.DIST.CLERK                       956+487+8493                       05/21/2015 10 :55    #199 P.001/001




BRENDALY GUERRERO
    CHIEF DEPUTY                                      •
                                              ELOY R. GARCIA
                                                 DISTRICT CLERK
                                                               .

                                           STARR COUNTY COURTHOUSE
                                                    ROOM304
                                                                                                      PHONE NUMBERS
                                                                                                        (956) 716-4800
                                                                                                           EXT. 8482
                                                                                                      Fax: (95B) 4117-8493

                                           RIO GRANDE CITY, TEXAS 785B2
                                            Email; dtslrlclclerkOco.starr.tx.us

      May Zl, 2015

      Brett Reynolds & Associates PC
      Attn: Jean
     1250 N.E. Loop 410, Suite 420
     San Antonio, Texas 78209

              Re:     Cause No.: DC-15-6
                      Mario Flores v. Autozone, Inc. et al.


     Dear Ms. Jean:

              This letter serves as an Invoice for the above-mentioned cause number, for preparation of the
     clerk's record. A total amount of $400.00 is due, immediate payment is required for us to foiward
     appeal to the Fourth Court of Appeals.

             If you should have any questions, please feel free to contact me.
BRETI' REYNOLDS & ASSOCIA TI!S, P.C.                                      6973



5/26/2015
Eloy Garcia, Starr County District Clerk
$400.00
Cause No. DC: 15-6; Mario Flores vs. AutoZoners. LLC and AutoZone, Inc.
Preparation and filing for clerk's record to Fourth COA
BRETT REYNOLDS oi ASSOCIATES, P.C.
                                                                      6974

        5/29/ 2015
        E1oy Garcia, Starr County District Clerk
        $400.00
        Preparation of clerks record for 4th COA Cause No. DC: 15-6
        Mario Flores vs. AutoZone, Inc.
From:STARR   CO.DIST . CLERK                   956+487+8493                        0610212015 15:44     #271 P.002/002




BRENDALY GUl!RFl~AO
     CHIEF OEPIJTY                                    •
                                               ELOY R, GARCIA
                                                  DISTRICT CLEAK
                                           STARR COUNTY COU~HOUSE
                                                        ROOM304
                                                                                                        PHONE NUMBERS
                                                                                                         (ffe) 71S·4800
                                                                                                             EXT. 8482
                                                                                                        Fax: (856, 487·8493
                                           RIO GRANDE OITY1 TEXAS 78682
                                            Emah: dlltrJctcteri<Oco.starT.bc. ua



     June 2, 2015

     Brett Reynolds & Associates P.c.
     P. Brook Swilley
     1250 N.E. Loop 410, Suite 420
     San Antonio, Texas 78209

             Ra:     DCP15-6
                     Mario flores Vs. Autozone, Inc. Autozoners L.L.C. d/b/a A\ltozone #3115



     Dear Brook:

             This letter is to inform you that we received full p&yment of $4-00.00, for preparation of Clerk's
     record. We will start preparing the clerk's record and submit it t.o the 4tll Court of Appeals.

             If you should have any questions, please feel free to contact this office.


                                                                 Sincerely,
STATE OF TEXAS  §
                §
COUNTY OF BEXAR §



     Before me, the undersigned notary public, on this day personally appeared P.
Brook Swilley, known to me to be the person whose name is subscribed below,
who on her oath stated and deposed as follows:


     My name is P. Brook Swilley. I am over 18 years of age and am competent to
make this affidavit. I am a senior associate with the firm of Brett Reynolds &
Associates, P.C. and an attorney for Appellants AutoZone, Inc. and AutoZoners,
L.L.C., who are Appellants in Cause No. 04-15-00307-CV pending in the Fourth
Court of Appeals, sitting in San Antonio, Texas. I have personal knowledge of the
facts stated herein, all of which are true and correct.


     I am familiar with the manner in which the records of Brett Reynolds &
Associates, P.C. are created and maintained by virtue of my duties and
responsibilities. Attached to the Response to Court Order Regarding Payment for
Clerk's Record are two check stubs reflecting payment issued to Eloy Garcia, Starr
County District Clerk, for preparation and filing of the clerk's record in this matter.
The check stubs were prepared by the firm's office manager at the time that each
check was issued as part of the regular practice of, and are kept in the course of the
regularly conducted business activity of, Brett Reynolds & Associates, P.C. The
copies attached to the response are true and correct copies of the original check
stubs. The firm mailed payment as reflected on the check stubs for preparation of
the clerk's record in this appeal to the Starr County District Clerk on May 26, 2015
and May 29, 2015 respectively.


     Also attached to the Response are two items of correspondence from Brendaly
Guerrero of the Starr County District Clerk, which were faxed to the firm of Brett
Reynolds & Associates, P.C. The copies of those two items of correspondence are
true and correct copies of the letters the firm received via facsimile from the office
of the Starr County District Clerk.
Affidavit of P. Brook Swi11ey
June 3, 2015




        Further, Affiant sayeth not.




                                           P. Brook Swilley
                                           State Bar No. 240



        SUBSCRIBED TO AND SWORN to before me on this 3rd day of June,
2015.




                                       2
