Joseph Andre Davis v. Sandra Lopez ( 2015 )

ACCEPTED
01-15-00353-CV & 01-15-00336-CV
01-15-00408-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/20/2015 8:16:09
8/21/2015 4:27:16 AM
PM
CHRISTOPHER PRINE
CLERK
FIRST COURT OF APPEALS
HOUSTON, TEXAS
RE: Case No. 01-15-00353-CV
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
RE: Case No. 01-15-00356-CV 8/21/2015 8:16:09 AM
IN RE JOSEPH ANDRE DAVIS
CHRISTOPHER A. PRINE
Clerk
APPELLANT
V.
FLOYD D LOPEZ
APPELLE
From cause No. 2014-58410
In the 245th District Court of
Harris County, Texas
The Honorable Roy L. Moore
JUDICIAL NOTICE Under Federal Rule of Evidence 201
Appellants respectfully assert that the Court has overlooked or misapprehended
critical facts. There is nor have there ever been an appeal filed against the appellate
Sandra Lopez who has been deceased since May 24, 2014.
Case #1997-09681 is a case that was filed by Floyd D Lopez and Irma O Jimenez
who are the maternal grandparents.
On June 28, 2014 under Texas Family Code 156. the maternal claiming to intervene
in case #1997-09681 after the death of Sandra Lopez who was a joint managing
conservator and deceased at the time the grandparents filed their petition in Sandra’s
name. I have also submitted evidence that 245th district court no longer had
jurisdiction as of May 30, 2015 in my writ of mandamus case # 01-15-00408-CV.
MAY 01, 2015 I filed an appeal which was a Wirt of Mandamus. I have paid the fee
for both and presented all documents for both writs that are against the 245 th district
court and the maternal grandparents and never against Sandra Lopez.
Moreover, "[m]andamus is proper to correct a clear abuse of discretion when there is
no adequate remedy by appeal, as when a party is erroneously denied its contracted-for
arbitration rights under the FAA." In re D. Wilson,196 S.W.3d at 780 (internal citation
omitted); see also Jack B. Anglin,842 S.W.2d at 272-73 (awarding mandamus relief
where a party "would be deprived of the benefits of the arbitration clause it contracted
for, and the purpose of providing a rapid, inexpensive alternative to traditional litigation
would be defeated").
Perez argues mandamus review is inappropriate because CMH Homes failed to file a
separate mandamus petition and, citing Jack B. Anglin, contends that the court "may
not enlarge [its] appellate jurisdiction absent legislative mandate." 842 S.W.2d at 272.
However, CMH Homes invoked the court of appeals' appellate jurisdiction by
specifically requesting that its appeal be treated as a mandamus petition. See Warwick
Towers Council of Co-Owners v. Park Warwick, L.P., 244 S.W.3d 838, 839 (Tex. 2008)
("[T]he factor which determines whether jurisdiction has been conferred on the
appellate court is not the form or substance of the bond, certificate or affidavit, but
whether the instrument was filed in a bona fide attempt to invoke *453453 appellate court
jurisdiction." (internal quotations and citations omitted)); see also Linwood v. NCNB
Tex.,885 S.W.2d 102, 103(Tex. 1994) ("The court of appeals . . . has jurisdiction over
the appeal if a party files an instrument in a bona fide attempt to invoke the appellate
court's jurisdiction."); Grand Prairie Indep. Sch. Dist. v. S. Parts Imps., 813 S.W.2d
499, 500 (Tex. 1991) ("If the appellant timely files a document in a bona fide attempt
to invoke the appellate court's jurisdiction, the court of appeals, on appellant's motion,
must allow the appellant an opportunity to amend or refile the instrument required by
law or our Rules to perfect the appeal").
On May 01, 2015 I filed a writ of mandamus under in the first court of appeals and I
informed the First Court of Appeals of the 2 writs of mandamus that I had filed with
this court. I was informed of 2 option that I had with the first court of appeals to dismiss
my appeal the first option was to file a motion to dismiss or second option was that it
will dismiss it self if payment was not received within 20 days.
Texas policy as "``embodied in our appellate rules . . . disfavors disposing of appeals
based upon harmless procedural defects.``" Higgins v. Randall Cnty. Sherifs Office,257
S.W.3d 684, 688 (Tex. 2008) (quoting Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.
1997)); see alsoTEX. R.APP. P. 44.3 ("A court of appeals must not affirm or reverse a
judgment or dismiss an appeal for formal defects or irregularities in appellate procedure
without allowing a reasonable time to correct or amend the defects or irregularities.").
This Court has previously treated a petition for review as a petition for writ of
mandamus where the appellant/relator specifically sought mandamus relief. Powell v.
Stover, 165 S.W.3d 322, 324 n. 1 (Tex. 2005). And it is our practice when confronted
with parallel mandamus and appeal proceedings "to consolidate the two
proceedings and render a decision disposing of both simultaneously." In re Valero
Energy Corp., 968 S.W.2d 916, 917 (Tex. 1998).
Moreover, nothing in the procedures for interlocutory appeals and mandamus actions
prevents us from treating this appeal as a petition for writ of mandamus. Appeals from
interlocutory orders are accelerated, and an accelerated appeal is perfected by filing a
notice of appeal within twenty days of the order. See TEX. R.APP. P. 26.1(b). Because
mandamus is "controlled largely by equitable principles," there is no fixed deadline for
filing original proceedings in the Texas Rules of Appellate Procedure. In re Int'l Profit
Assocs., Inc., 274 S.W.3d 672, 676 (Tex. 2009) (citations omitted). An appeal
complying with the rules governing an accelerated appeal would generally be timely
for mandamus purposes. Additionally, briefs in mandamus actions and interlocutory
appeals have the same content and page length requirements. Compare TEX.R.APP. P.
38.1, .4 (stating contents of brief and page length requirement for appeal to the courts
of appeals), with, TEX.R.APP. P. 52.3, .6 (stating contents of brief and page length
requirement for original proceedings at the Supreme Court and courts of appeals).
"[T]he interests of promoting the policy considerations of rigorous and expedited
enforcement of arbitration agreements" would not be served by letting a technicality
rule the day.8 Jack R. Anglin,842 S.W.2d at 272.
8.
Although we note that CMH Homes's petition was not certified at this Court as required by Texas Rule
of Appellate Procedure 52.3(j), we are confident that CMH Homes will fully comply with Rule 52 on
remand to the court of appeals.
We will not unnecessarily waste the parties' time and further judicial resources by
requiring CMH Homes to file a separate document with the title "petition for writ of
mandamus" listed on the cover where the party has expressly requested mandamus
treatment of its appeal in an uncertain legal environment. See Wagner Brown, Ltd. v.
Horwood,53 S.W.3d 347, 351 (Tex. 2001) (rejecting an "approach [that] catapults form
over substance to deny appellate review on the merits"). *454454 Because CMH Homes
specifically requested mandamus relief in the court of appeals and preserved that issue
in this Court, and because judicial efficiency militates against requiring CMH Homes
to file a separate original proceeding, we instruct the court of appeals to consider
this appeal as a petition for writ of mandamus. Today, we speak only to the propriety
of mandamus review and not to the propriety of mandamus relief in this particular case.
Because the merits were not briefed to this Court, we do not decide whether the trial
judge improperly appointed an arbitrator.
Conclusion
We hold that Texas Civil Practice and Remedies Code section 51.016 does not permit
interlocutory appeal from an order appointing an arbitrator. However, this appeal may
properly be considered as a petition for writ of mandamus, as CMH Homes requested.
The court of appeals erred in dismissing CMH Homes's appeal for lack of jurisdiction.
Accordingly, we reverse and remand to the court of appeals for further proceedings
consistent with this opinion.
I declare under the penalty of perjury of the laws of the State of Texas that the
foregoing is true and correct. Signed this 20th day of August 20, 2015, at Spring,
Texas.
_________________________
/s/
Joseph Andre Davis, Pro Se
3714 Pinebrook Hollow Ln.
Spring, Texas 77386
Tel: (832)660-7207
Jdavis1103@hotmail.com
CERTIFICATION OF SERVICE
I certify that a true copy of the above was served on Respondents Floyd
Daniel Lopez and Irma Olga Jimenez's Counsel Norman Eugene Lester Jr,
by E-Mail: HouTxLawyer@aol.com and served by E-File to 245th District
Judge Roy L. Moore and Associate Judge James Cooper in accordance with
the Texas Rules of Civil Procedure on August 20
6, 2015
8/20/2015
_________________________
/s/
JOSEPH ANDRE DAVIS, PRO SE
I, ________________certify
/s/
that I have reviewed the petition and concluded
that every factual statement in the petition is supported by competent evidence
included in the appendix or record.
APPENDIX A
FILE COPY
FIRST COURT OF APPEALS
301 Fannin Street
Houston, Texas 77002-2066
Friday, May 01, 2015
RE: Case No. 01-15-00408-CV
Style: In re Joseph Andre Davis
Please be advised that on this date the court filed relator's petition
for writ of mandamus in the above cause.
T. C. Case # 2014-58410 Christopher A. Prine, Clerk of the Court
Norman Eugene Lester Jr.
501 Elm St Ste 395
Dallas, TX 75202-3324
FIRST COURT OF APPEALS
301 Fannin Street
Houston, Texas 77002-2066
Friday, May 01, 2015
RE: Case No. 01-15-00408-CV
Style: In re Joseph Andre Davis
Please be advised that on this date the court filed relator's petition
for writ of mandamus in the above cause.
T. C. Case # 2014-58410 Christopher A. Prine, Clerk of the Court
Norman Eugene Lester Jr.
501 Elm St Ste 395
Dallas, TX 75202-3324
DELIVERED VIA E-MAIL
FILE COPY
FIRST COURT OF APPEALS
301 Fannin Street
Houston, Texas 77002-2066
Friday, May 01, 2015
RE: Case No. 01-15-00408-CV
Style: In re Joseph Andre Davis
Please be advised that on this date the court filed relator's petition
for writ of mandamus in the above cause.
T. C. Case # 2014-58410 Christopher A. Prine, Clerk of the Court
Joseph Andre Davis
3323 Rose Trace Dr.
Spring, TX 77386
FIRST COURT OF APPEALS
301 Fannin Street
Houston, Texas 77002-2066
Friday, May 01, 2015
RE: Case No. 01-15-00408-CV
Style: In re Joseph Andre Davis
Please be advised that on this date the court filed relator's petition
for writ of mandamus in the above cause.
T. C. Case # 2014-58410 Christopher A. Prine, Clerk of the Court
Joseph Andre Davis
3323 Rose Trace Dr.
Spring, TX 77386
DELIVERED VIA E-MAIL
FILE COPY
FIRST COURT OF APPEALS
301 Fannin Street
Houston, Texas 77002-2066
Friday, May 01, 2015
RE: Case No. 01-15-00408-CV
Style: In re Joseph Andre Davis
Please be advised that on this date the court filed relator's petition
for writ of mandamus in the above cause.
T. C. Case # 2014-58410 Christopher A. Prine, Clerk of the Court
Judge 245th District Court
201 Caroline
15th Floor
Houston, TX 77002
DELIVERED VIA E-MAIL
FILE COPY
FIRST COURT OF APPEALS
301 Fannin Street
Houston, Texas 77002-2066
May 12, 2015
RE: Case No. 01-15-00353-CV
Style: Joseph Andre Davis
v. Sandra Lopez
The case was filed in this Court on April 21, 2015. To date, our
records show that Appellant has neither established indigence nor paid the
$195 appellate filing fee. See TEX. R. APP.P.5.
Unless appellant pays the appellate filing fee on or before June 11,
2015, the Court may dismiss the appeal. See TEX. R. APP. P. 42.3
T. C. Case # 1997-09681 Christopher A. Prine, Clerk of the Court, Clerk
Sandra Lopez
23918 Spring Towne Dr.
Spring, TX 77373-6362
FIRST COURT OF APPEALS
301 Fannin Street
Houston, Texas 77002-2066
May 12, 2015
RE: Case No. 01-15-00353-CV
Style: Joseph Andre Davis
v. Sandra Lopez
The case was filed in this Court on April 21, 2015. To date, our
records show that Appellant has neither established indigence nor paid the
$195 appellate filing fee. See TEX. R. APP.P.5.
Unless appellant pays the appellate filing fee on or before June 11,
2015, the Court may dismiss the appeal. See TEX. R. APP. P. 42.3
T. C. Case # 1997-09681 Christopher A. Prine, Clerk of the Court, Clerk
Joseph Andre Davis
3323 Rose Trace Dr
Spring, TX 77386
DELIVERED VIA E-MAIL
FILE COPY
FIRST COURT OF APPEALS
301 Fannin Street
Houston, Texas 77002-2066
May 06, 2015
RE: Case No. 01-15-00353-CV
Style: Joseph Andre Davis
v. Sandra Lopez
The clerk’s record in this appeal has not been timely filed with this court.
The court requests that the record be filed within 30 days of the date of this
letter. If the record is not filed by that date, I will refer the matter to the
court. If you are unable to file the record by that date, you should request an
extension for the court to consider. If the appellant has not made arrangements for
paying for the record, please advise the court in writing. See Tex. R. App. P.
35.3(a)(2)and (b)(3).
T. C. Case # 1997-09681 Christopher A. Prine, Clerk of the Court
Sandra Lopez
23918 Spring Towne Dr.
Spring, TX 77373-6362
FIRST COURT OF APPEALS
301 Fannin Street
Houston, Texas 77002-2066
May 06, 2015
RE: Case No. 01-15-00353-CV
Style: Joseph Andre Davis
v. Sandra Lopez
The clerk’s record in this appeal has not been timely filed with this court.
The court requests that the record be filed within 30 days of the date of this
letter. If the record is not filed by that date, I will refer the matter to the
court. If you are unable to file the record by that date, you should request an
extension for the court to consider. If the appellant has not made arrangements for
paying for the record, please advise the court in writing. See Tex. R. App. P.
35.3(a)(2)and (b)(3).
T. C. Case # 1997-09681 Christopher A. Prine, Clerk of the Court
The Honorable Harris County District Clerk's Office -
Civil
Harris County District Clerk - Civil
201 Caroline, Ste 420
Houston, TX 77002DELIVERED VIA E-MAIL
FILE COPY
FIRST COURT OF APPEALS
301 Fannin Street
Houston, Texas 77002-2066
May 06, 2015
RE: Case No. 01-15-00353-CV
Style: Joseph Andre Davis
v. Sandra Lopez
The clerk’s record in this appeal has not been timely filed with this court.
The court requests that the record be filed within 30 days of the date of this
letter. If the record is not filed by that date, I will refer the matter to the
court. If you are unable to file the record by that date, you should request an
extension for the court to consider. If the appellant has not made arrangements for
paying for the record, please advise the court in writing. See Tex. R. App. P.
35.3(a)(2)and (b)(3).
T. C. Case # 1997-09681 Christopher A. Prine, Clerk of the Court
The Honorable Harris County District Clerk's Office -
Civil
Harris County District Clerk - Civil
201 Caroline, Ste 420
Houston, TX 77002
DELIVERED VIA E-MAIL
FIRST COURT OF APPEALS
301 Fannin Street
Houston, Texas 77002-2066
May 06, 2015
RE: Case No. 01-15-00353-CV
Style: Joseph Andre Davis
v. Sandra Lopez
The clerk’s record in this appeal has not been timely filed with this court.
The court requests that the record be filed within 30 days of the date of this
letter. If the record is not filed by that date, I will refer the matter to the
court. If you are unable to file the record by that date, you should request an
extension for the court to consider. If the appellant has not made arrangements for
paying for the record, please advise the court in writing. See Tex. R. App. P.
35.3(a)(2)and (b)(3).
T. C. Case # 1997-09681 Christopher A. Prine, Clerk of the Court
Judge 245th District Court
201 Caroline
15th Floor
Houston, TX 77002DELIVERED VIA E-MAIL
FILE COPY
FIRST COURT OF APPEALS
301 Fannin Street
Houston, Texas 77002-2066
May 06, 2015
RE: Case No. 01-15-00353-CV
Style: Joseph Andre Davis
v. Sandra Lopez
The clerk’s record in this appeal has not been timely filed with this court.
The court requests that the record be filed within 30 days of the date of this
letter. If the record is not filed by that date, I will refer the matter to the
court. If you are unable to file the record by that date, you should request an
extension for the court to consider. If the appellant has not made arrangements for
paying for the record, please advise the court in writing. See Tex. R. App. P.
35.3(a)(2)and (b)(3).
T. C. Case # 1997-09681 Christopher A. Prine, Clerk of the Court
Court Reporter 245th District Court
201 Caroline, 15th Floor
Houston, TX 77002
DELIVERED VIA E-MAIL
FIRST COURT OF APPEALS
301 Fannin Street
Houston, Texas 77002-2066
May 06, 2015
RE: Case No. 01-15-00353-CV
Style: Joseph Andre Davis
v. Sandra Lopez
The clerk’s record in this appeal has not been timely filed with this court.
The court requests that the record be filed within 30 days of the date of this
letter. If the record is not filed by that date, I will refer the matter to the
court. If you are unable to file the record by that date, you should request an
extension for the court to consider. If the appellant has not made arrangements for
paying for the record, please advise the court in writing. See Tex. R. App. P.
35.3(a)(2)and (b)(3).
T. C. Case # 1997-09681 Christopher A. Prine, Clerk of the Court
Joseph Andre Davis
3323 Rose Trace Dr
Spring, TX 77386DELIVERED VIA E-MAIL
FILE COPY
SHERRY RADACK CHRISTOPHER A. PRINE
CHIEF JUSTICE CLERK OF THE COURT
TERRY JENNINGS JANET WILLIAMS
EVELYN KEYES CHIEF STAFF ATTORNEY
LAURA CARTER HIGLEY
JANE BLAND
MICHAEL MASSENGALE
Court of Appeals PHONE: 713-274-2700
FAX: 713-755-8131
HARVEY BROWN
REBECA HUDDLE
First District www.txcourts.gov/1stcoa.aspx
RUSSELL LLOYD 301 Fannin Street
JUSTICES
Houston, Texas 77002-2066
May 6, 2015
Court Reporter 245th District Court
201 Caroline, 15th Floor
Houston, TX 77002
* DELIVERED VIA E-MAIL *
RE: Court of Appeals Number: 01-15-00353-CV Trial Court Case Number: 1997-
09681
Style: Joseph Andre Davis v. Sandra Lopez
Dear Reporter:
The reporter’s record was due to be filed May 4, 2015, but it has not been received for
filing. See TEX. R. APP. P. 35.1. Please file the reporter’s record within 30 days of the date of
this notice. See TEX. R. APP. P. 37.3(a)(1).
Or, you may use the information sheet on the Forms page of the Court’s website,
http://www.txcourts.gov/1stcoa, to notify my office that: (1) proceedings were not recorded; (2)
no party has requested a reporter’s record; (3) the party responsible for paying for preparation of
the reporter’s record has not paid the reporter’s fee or has not made satisfactory arrangements to
pay the fee and, is not entitled to appeal without paying the fee, i.e., the party is not indigent. See
TEX. R. APP. P. 35.3 (b).
If either the reporter’s record or a request for an extension of time is not filed by the due
date, this matter will be referred to the Court so it can make whatever order is appropriate to
avoid further delay and to preserve the parties’ rights. See TEX. R. APP. P. 37.3(a)(1).
Sincerely,
Christopher A. Prine, Clerk of the Court
By Noemi E. Hernandez, Deputy Clerk
FILE COPY
cc: Joseph Andre Davis (DELIVERED VIA E-MAIL)
Sandra Lopez
Judge 245th District Court (DELIVERED VIA E-MAIL)
The Honorable Harris County District Clerk's Office - Civil (DELIVERED VIA E-
MAIL)
JUDGMENT
Court of Appeals
First District of Texas
NO. 01-15-00353-CV
JOSEPH ANDRE DAVIS, Appellant
V.
SANDRA LOPEZ, Appellee
Appeal from 245th District Court of Harris County (Tr. Ct. No. 1997-09681)
Appellant, Joseph Andre Davis, has neither established indigence nor paid, or made
arrangements to pay, all the required fees. Further, appellant has not paid or made
arrangements to pay the fee for preparing the clerk’s record. After being notified that this
appeal was subject to dismissal, appellant did not adequately respond. It is therefore
CONSIDERED, ADJUDGED, and ORDERED that the appeal be dismissed.
It is further ORDERED that appellant pay all costs incurred by reason of this
appeal. It is further ORDERED that this decision be certified below for observance.
Judgment rendered August 20, 2015.
Judgment rendered by panel consisting of Justices Keyes, Massengale, and Lloyd.
y