James Williams v. Patrick Cuba, Sr. ( 2015 )

ACCEPTED
01-15-00110-cv
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/18/2015 11:14:31 AM
CHRISTOPHER PRINE
CLERK
NO. 01-15-001100-CV
FILED IN
JAMES WILLIAMS § 1st COURT
IN THE COURT OF OF APPEALS
APPEALS
HOUSTON, TEXAS
Appellant § 5/18/2015 11:14:31 AM
§ 1ST DISTRICT
CHRISTOPHER A. PRINE
VS. § Clerk
§ HOUSTON, TEXAS
PATRICK CUBA SR.
Appellee
MOTION TO DISMISS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, PATRICK CUBA, SR., Appellant in the above referenced
matter, and files MOTION TO DISMISS, and would respectfully show unto the
Court as follows:
I.
This appeal arises from a Summary Judgment entered on November 7, 2014.
This appeal should be dismissed for want of jurisdiction and for want of prosecution
for the following reasons. .
Appellant did not timely file a Motion for New Trial;
Appellate failed to timely file a Notice of Appeal;
Appellant has failed to pay costs of appeal; and
No Clerks record has been filed and there is no indication of any attempt to
obtain the clerks record or pay the costs for the record.
II.
The relevant timeline for the basis of this motion is as follows:
 Judgment was entered on November 7, 2014, ( See Appendix - Exhibit 1
)
 Appellant filed a Motion seeking a new trial amongst other relief on
Wednesday, December 10, 2014. (See Appendix - Exhibit 2)
 On January 20, 2015, the Trial Court denied the relief sought in the
Motion filed on December 10, 2015 for lack of Plenary Jurisdiction. (See
Appendix - Exhibit 3)
 On January 30, 2015 the Appellant filed a notice of appeal with the Trial
Court.
 On February 5, 2015 the clerk of the court5 sent a letter to Counsel
outlining various prospective due dates for the Appellate record and
payment of the filing fee for the appeal.
 On February 11, 2015,the undersigned sent a letter to the Court Clerk for
the Court of Appeals agreeing to the March 7, 2015 due date of the
Appellate record, despite Appellant’s position that the Motion for New
Trial was not timely filed.
 On February 25, 2015 the filing fee for this appeal was due.
 On February 25, 2105 the docketing statement was due to be filed by
Appellant.
 On February 26, 2015 the Clerk sent a Notice to Appellant that the filing
fee was past due, stating the appeal may be dismissed if the fee is not
received on or before March 30, 2015..
 On March 7, 2015 the records for the appeal was due.
 On March 9, 2015 the Clerk of the Court of Appeals sent a notice to the
parties that the Appellate Record was past due, and advising Appellant to
file a Motion for Extension within 30 days.
 On April 8, 2015 the Appellate Record was due per the Clerks Notice of
March 9, 2015.
II.
To date Appellant has not filed any Motion for Extension of Time.
There is no indication of any attempt to secure the Clerks Record, or arrange to
pay for such. The Appellant has not paid the filing fee nor has Appellant filed
the docketing statement.
III.
Appellants Motion for New Trial was due on Monday, December 8, 2014. Tex.
R. Civ. P 929b (a); Tex. R. Civ. P. 4. Failure to timely file the Motion for New Trial
caused the Trial Court to lose plenary jurisdiction before the Motion for New Trial was
filed on December 10, 2014. The failure to timely file the Motion for New trial made
the Notice of Appeal due on December 8, 2014. The Notice of Appeal filed on
January 20, 2015 was untimely. Tex. R. App. P. 26.1 The untimely filing of the Notice
of Appeal fails to invoke the jurisdiction of the Court of Appeals.
IV
The Appellant has failed take any steps to prosecute this appeal, beyond the
filing of the Notice of Appeal. Pursuant to Rule 42.3 Appellant seeks dismissal of the
Appeal for failure to pay the filing fees, file the docketing statement, and failure to
secure and arrange for the filing of the Appellate Record.
V.
CERTIFICATE OF CONFERENCE
On May 15, 2015, the undersigned counsel spoke with Counsel for Appellant
and advised of intent to file this motion. Counsel for Appellant stated that she is
opposed to the dismissal of this Appeal.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant, PATRICK CUBA,
SR. prays the Court of Appeals dismiss this appeal, and for such other and further
relief to which Appellant may show himself to be justly entitled.
Respectfully submitted,
LAW OFFICES OF KILPATRICK, WHITE &
DEAS
BY:
Alan Janiga
SBN: 10570050
801 Louisiana Street, Suite 500
Houston, TX 77002
Phone: (713) 546-2000
Fax: (713) 228-3297
Attorney for Appellant
PATRIC CUBA SR.
CERTIFICATE OF SERVICE
I certify that on this 18TH day of May, 2015, service required under these rules
was made pursuant to Tex. R. App. P. 9.5
Sonya Chandler-Anderson
405 Main St., Suite 700
Houston, Texas 77002
sonya@attsonyaandersonlaw.com
facsimile (866) 274-8878
Alan Janiga