Autozone, Inc. and Autozoners L.L.C. v. Mario Flores ( 2015 )

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