Garry L. Rollins and Carla D. Rollins v. Texas College and MPF Investments, LLC D/B/A "A-1 Rent All" ( 2015 )

ACCEPTED
12-15-00121-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
7/7/2015 12:50:12 PM
CATHY LUSK
CLERK
No. 12-15-00121-CV
__________________________________________________________________
FILED IN
IN THE COURT OF APPEALS 12th COURT OF APPEALS
TYLER, TEXAS
FOR THE TWELFTH DISTRICT OF TEXAS
7/7/2015 12:50:12 PM
TYLER, TEXAS
CATHY S. LUSK
__________________________________________________________________
Clerk
GARRY L. ROLLINS AND CARLA D. ROLLINS,
Appellants
V.
TEXAS COLLEGE AND
MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL,"
Appellees
__________________________________________________________________
Appeal from Cause No. 13-3353-A
In the 7th District Court of Smith County, Texas
__________________________________________________________________
APPELLANTS’ UNOPPOSED MOTION
TO CORRECT CLERK’S RECORD
_____________________________________________________________
TO THE HONORABLE COURT OF APPEALS:
Appellants, Gary L. Rollins and Carla Rollins request that this
Court issue a letter directing the trial court clerk to correct the
clerk’s record and to re-file the record in proper format and would
shows as follows:
Appellees are Texas College and MPF Investments, LLC d/b/a
“A-1 Rent All."
1. OMITTED ITEMS
Texas Rule of Appellate Procedure 34.5(c)(1) provides:
(c) Supplementation.
(1) If a relevant item has been omitted from the clerk's
record, the trial court, the appellate court, or any party may by
letter direct the trial court clerk to prepare, certify, and file in
the appellate court a supplement containing the omitted item.
Tex. R. App. P. 34.5(c)(1). The parties have all previously made
letter requests per this rule to the trial court clerk to ensure the
record is complete.
2. DEFECTS IN THE RECORD
Texas Rule of Appellate Procedure 34.5 (d) provides:
(d) Defects or Inaccuracies. If the clerk's record is defective or
inaccurate, the appellate clerk must inform the trial court
clerk of the defect or inaccuracy and instruct the clerk to
make the correction.
Tex. R. App. P. 34.5(d).
In preparing their brief, Appellants’ have determined that the
vast majority of the items included in the current clerk’s record are
not text-searchable, and not bookmarked at the first page. Because
of the way they the documents are formatted, an OCR attempt at
our end failed. This format is required by the Texas Supreme
Court’s Order Directing the form of the Appellate Record, Rule 1.2
that reads:
1.2. Filing an Electronic Clerk's Record.
Unless the clerk receives permission from the appellate
court to file the record in paper form, the clerk must file the
record electronically. When filing a clerk's record in electronic
form, the trial court clerk must:
(a) file each computer file in text-searchable Portable
Document Format (PDF);
(b) create electronic bookmarks to mark the first page of
each document in the clerk's record; ….
Tex. R. App. P. Appendix C.
Below is an exemplar of how the bookmarks (on the left in
grey) are supposed to appear. This exemplar was taken from a
clerk training video provided on this Court’s website:
The exemplar clearly shows each document bookmarked with a
separate descriptive title.
Below is a view of the clerk’s record vol. 1 in this case:
By looking at the left, one can clearly see that the entire volume is
marked with only one book mark, when in fact, the volume contains
many separate documents. This is evidenced by the clerk’s own
index for volume 1 shown below:
Appellant requests this Court to order the trial court clerk to
bookmark the individual documents. Because each party is
required to furnish a bookmarked Appendix with its brief, this will
eliminate inconsistencies in the appendices of the parties, and
eliminate undue burden of document conversion on the part of the
Appellants.
Furthermore, although Appellant is unable to represent the
problem graphically, the documents contained in the record are not
text-searchable as required by the Supreme Court’s order.
Appellants request this Court to order the trial court clerk to file the
record (to the extent feasible) in text-searchable format. Again, this
will reduce the burden on the Appellants and Appellees when
creating their appendices for this Court, which must be text-
searchable as well. This Courts website has a video which can be
of great use by the clerk in learning how to make the record comply
with the Supreme Court’s order:
http://www.txcourts.gov/12thcoa/practice-before-the-
court/electronic-filing/clerks-and-court-reporters.aspx
It is suggested that this Court direct the clerk to comply with the
video in preparing the record.
WHEREFORE, Appellants pray that this Court direct the trial
court clerk by order to refile the original record and the
supplemental record with the requisite bookmarks in a text-
searchable format as required by the Texas Supreme Court.
Respectfully submitted,
/s/ Ernesto D. Sigmon
Ernesto D. Sigmon
State Bar No. 24010397
LAW OFFICES OF ERNESTO D. SIGMON
SIGMON LAW, PLLC
416 West Saulnier Street
Houston, Texas 77019
214/395-1546 (Telephone)
713/485-6056 (Facsimile)
esigmon@esigmon.com
ATTORNEY FOR APPELLANTS,
GARRY L. ROLLINS AND CARLA D.
ROLLINS
CERTIFICATE OF CONFERENCE
I certify that I conferred with lead appellate counsel for Texas
College and MPF Investments, LLC by e-mail on July 7th, 2015.
Greg Smith (counsel for Texas College) is unopposed to the motion.
Levon Hovnatanian (counsel for MPF) is unopposed to the motion.
/s/ Ernesto D. Sigmon
Ernesto D. Sigmon
State Bar No. 24010397
LAW OFFICES OF ERNESTO D. SIGMON
SIGMON LAW, PLLC
416 West Saulnier Street
Houston, Texas 77019
214/395-1546 (Telephone)
713/485-6056 (Facsimile)
esigmon@esigmon.com
ATTORNEY FOR APPELLANTS,
GARRY L. ROLLINS AND CARLA D.
ROLLINS
CERTIFICATE OF SERVICE
I certify that on July 7, 2015, I served a copy of Appellants’
Unopposed Motion to Correct Clerk’s Record on the parties listed
below by electronic service and that the electronic transmission was
reported as complete. My e-mail address is esigmon@esigmon.com.
/s/ Ernesto D. Sigmon
Ernesto D. Sigmon
State Bar No. 24010397
LAW OFFICES OF ERNESTO D. SIGMON
WALKER SIGMON LAW
416 West Saulnier Street
Houston, Texas 77019
214/395-1546 (Telephone)
713/485-6056 (Facsimile)
esigmon@esigmon.com
ATTORNEY FOR APPELLANTS,
GARRY L. ROLLINS AND CARLA D.
ROLLINS
Greg Smith
Texas Bar No. 18600600
Nolan D. Smith
Texas Bar No. 24075632
RAMEY & FLOCK, P.C.
100 E. Ferguson, Suite 500
Tyler, Texas 75702
Telephone: 903-597-3301
Facsimile: 903-597-2413
Mr. Trey Yarbrough
YARBROUGH WILCOX GUNTER, PLLC
100 East Ferguson, Suite 1015
Tyler, Texas 75702
Fax: 903.595.0191
Levon G. Hovnatanian
Texas Bar No. 10059825
hovnatanian@mdjwlaw.com
lonergan@mdjwlaw.com
MARTIN, DISIERE, JEFFERSON &
WISDOM, L.L.P.
808 Travis, 20th Floor
Houston, Texas 77002
(713) 632-1700 – Telephone
(713) 222-0101 – Facsimile
Todd M. Lonergan
Texas Bar No. 12513700
lonergan@mdjwlaw.com
808 Travis, 20th Floor
Houston, Texas 77002
(713) 632-1700 – Telephone
(713) 222-0101 – Facsimile
Ryan K. Geddie
Texas Bar No. 24055541
geddie@mdjwlaw.com
MARTIN, DISIERE, JEFFERSON &
WISDOM, L.L.P.
Tollway Plaza One
16000 N. Dallas Parkway, Suite 800
Dallas, Texas 75248
(214) 420-5500 – Telephone
(214) 420-5501 – Facsimile