William M. Windsor v. Kellie McDougald ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-15-00069-CV
WILLIAM M. WINDSOR,
Appellant
v.
KELLIE MCDOUGALD,
Appellee
From the 378th District Court
Ellis County, Texas
Trial Court No. 88611
ORDER
Appellant, William W. Windsor, is incarcerated.1 This is one of four
interlocutory appeals in which appellant is acting as his own counsel.2 We have had
1Appellant has been filing documents more quickly than we are able to respond to them. This order is
based on information and documents received through the close of business on May 18, 2015 and will not
be modified based on documents received thereafter. Subsequently received documents will be
addressed, if necessary, at a later date.
2 See 10-14-00355-CV, Windsor v. Round; 10-14-00392-CV, Windsor v. Fleming; 10-15-00092-CV, Windsor v.
Joeyisalittlekid, et al.
difficulty in obtaining appellant’s compliance with the rules and procedures of this
Court.
Appellant has never filed the documents to determine whether he is a pauper.
Except for two of his most recent motions, he has paid, usually late and after notice and
threat of dismissal, most of the filing fees in all four proceedings. Other than the
unsupported conclusory statement in his motion to continue the stay, “I cannot afford
an attorney,” he had not asserted he could not hire counsel to represent him in this
appeal. Then, in two different motions entitled “Second Motion for Stay,” he provided
some financial information in an effort to explain why he cannot afford an attorney.3
The information provided establishes he is able to pay filing fees. Appellant has
contended, however, that due to his incarceration, he does not have adequate access to
information and legal resources and has previously requested a stay until he has
adequate access to the information and legal resources needed to handle his appeals.
We granted his request for a stay, in part, by order issued April 2, 2015. We ordered
this proceeding stayed for 35 days at which time the proceeding would be
automatically reinstated.
Appellant filed a motion to continue the stay and, now apparently recognizing
that the partial grant of a stay has now expired, has filed a second motion for stay and
an amended second motion for stay of this appeal until he is released from jail.
3 We will refer to the second “Second Motion for Stay” as an amended second motion for stay.
Windsor v. McDougald Page 2
Contrary to our explicit instructions in a letter dated March 16, 2015, appellant
did not file his motion to continue the stay in each pending appeal; in fact, he did not
even identify by case number or style of the proceeding, in which proceeding he
wanted to file the motion. He noted only that he wanted it to be filed in all his
proceedings other than his pending criminal appeal. Further, he did not pay the filing
fee contemporaneously with the motion to continue the stay as required. Also contrary
to our explicit instructions, appellant did not serve the motion on any other party to the
proceeding; and there is no proof of service presented with the motion as appellant had
been previously informed was required on every document filed with the Court.4 We
grow weary of appellant’s blatant disregard of the rules and explicit notices from the
Court, and we are not even close to being able to reach the merits of any of the issues in
these proceedings.
Appellant’s motion to continue the stay, second motion for stay, and amended
second motion for stay are woefully deficient in their procedural compliance.
Furthermore, we expressly explained that appellant would not be allowed to use his
incarceration as a means to further delay the disposition of this proceeding—precisely
the grounds for the extension of the stay which he seeks. Appellant’s motions are thus
also woefully deficient on their merits.
4 With regard to the second motion for stay and amended second motion for stay, Windsor did file a copy
in each proceeding but failed to provide proper proof of service.
Windsor v. McDougald Page 3
Accordingly, appellant’s motion to continue the stay, second motion for stay, and
second amended motion for stay are denied. The stay entered in this proceeding on
April 2, 2015 was automatically lifted by its express terms on May 7, 2015 and the
appellate timetable for this appeal resumed as of that date.
At this time, May 18, 2015, a $10 fee for the motion to continue the stay is past
due. Further, a $10 fee for the second motion for stay is past due. Failure to pay the
two required motion filing fees within 21 days from the date of this Order will result in
the dismissal of this appeal without further notice. TEX. R. APP. P. 42.3(c).
The clerk’s record and reporter’s record in this appeal are past due. Failure to
make arrangements to obtain and pay for the reporter’s record, if any, and to also notify
the Court of those arrangements within 21 days from the date of this Order will result
in the appeal being submitted on the clerk’s record alone. See TEX. R. APP. P. 37.3(c)(1).
Failure to make arrangements to obtain and pay for the clerk’s record and to also notify
the Court of those arrangements within 21 days from the date of this Order will result
in the dismissal of this appeal without further notice. Id. at (b).
Although the docketing statement for this appeal has been filed, it has not been
served on all parties to the appeal as required by Texas Rule of Appellate Procedure 9.5.
Failure to serve all parties to the appeal with the docketing statement and provide proof
of service to this Court in a form recognized by Rule 9.5(d) and (e) of the Texas Rules of
Windsor v. McDougald Page 4
Appellate Procedure within 21 days from the date of this Order will result in the
dismissal of this appeal without further notice. TEX. R. APP. P. 9.5(d), (e); 42.3(c).
Further, it appears that appellant is subject to a prefiling order and did not
present this appeal with an order from the federal district court in the district where the
appeal was filed giving appellant leave to file the appeal, such order being obtained in
the manner specified in Windsor v Hatten, No. 1:11-CV-1923-TWT, U.S. Dist. Court,
Northern Dist. of Georgia (July 15, 2011).
Accordingly, this appeal will be dismissed unless, within 21 days from the date
of this notice:
1. Appellant obtains permission to file this appeal from the appropriate
federal district court and present to this Court an order from that judge
granting appellant permission to file this appeal, or
2. Appellant sufficiently explains why a filing from appellant in this Court
is exempt from the federal court injunction order noted above.
Failure to file a response as requested, properly serve it on all parties to this
appeal, and provide proof of service to this Court in a form recognized by Rule 9.5(d)
and (e) of the Texas Rules of Appellate Procedure will result in the dismissal of this
appeal without further notification for failure to comply with this Order. TEX. R. APP. P.
42.3(c).
Finally, the notice of appeal filed in the trial court on February 25, 2015 and
herein on February 26, 2015 identified the order being appealed as a February 13, 2015
“Order Granting Defendant Kellie McDougald’s Motion for Sanctions.” We question
Windsor v. McDougald Page 5
whether we have jurisdiction of what appears to be an attempted appeal of an
interlocutory order. Appellant has 21 days from the date of this order to file a response
explaining how this Court has jurisdiction of this appeal, properly serve the response
on all parties to this appeal, and provide proof of service to this Court in a form
recognized by Rule 9.5(d) and (e) of the Texas Rules of Appellate Procedure. Failure to
timely file, serve, and provide proper proof of service will result in the dismissal of this
appeal without further notification for failure to comply with this Order. TEX. R. APP. P.
42.3(c).5
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Motion to continue stay denied
Second motion for stay denied
Amended second motion for stay denied
Order issued and filed May 28, 2015
5 The parties should not assume that by allowing the further development of this appeal that the Court
has determined whether this appeal should be dismissed for violation of a federal court’s order that
identified appellant as a vexatious litigant and enjoined appellant from filing any complaint or initiating
any proceeding in any state or federal court or agency in the United States without first obtaining leave of
a federal district court in the district where the new complaint or proceeding is to be filed.
Windsor v. McDougald Page 6