Opinion
Appellate case number: 01-16-00757-CV
10-13-2016
DMW, LLC Do's Vision Investment, LLC and Do Van Nguyen and Maria Ngo v. Dimensional Machine Works, LLC
ORDER AND NOTICE OF INTENT TO DISMISS FOR WANT OF JURISDICTION Trial court case number: 2016-47447 Trial court: 151st District Court of Harris County
On October 6, 2016, this Court had ordered the appellants, DMW, LLC Do's Vision Investment, LLC and Do Van Nguyen and Maria Ngo, to respond to the jurisdictional notice or else file a motion to designate this interlocutory appeal as a mandamus petition within ten days of that order. Later on October 6, 2016, appellants' counsel filed a motion to convert this appeal to an original petition for mandamus and a separate document called a petition for writ of mandamus. In the motion, appellants request conversion of their appeal to a mandamus petition, that this Court take notice that the correct name of the relator is DM Works, L.L.C., and to transfer the reporter's record, previously filed in this Court, and the clerk's record, which had yet to be filed in this Court, to the original proceeding. On October 7, 2016, the clerk's record was filed in this Court.
Accordingly, because appellants' notice of appeal had requested mandamus relief in the alternative, their motion to convert appeal to original petition for mandamus is GRANTED. See CMH Homes v. Perez, 340 S.W.3d 444, 453-54 (Tex. 2011) (treating appeal as mandamus petition "because the appellant specifically requested mandamus relief in the alternative). The Clerk of this Court is directed to designate this appeal petition as an original proceeding, to file the relator's document as a mandamus petition as of the date of this order, and to change the style of the case to "In re DM Works, L.L.C., Relator". Because no filing fee has been paid yet, the Court orders relator to pay the $155 filing fee for an original proceeding within 10 days of the date of this order or this Court may dismiss this petition. See TEX. R. APP. P. 5, 42.3(c).
In addition, although relator's motion requests that the clerk's and reporter's records be transferred to the original proceeding, relator filed this motion before the clerk's record was filed, and failed to include the relevant excerpts in a separate mandamus record as required. It is a relator's burden to provide this Court with a sufficient record to establish its right to mandamus relief. See TEX. R. APP. P. 52.3(k)(2) (noting that "appendix should not contain any evidence or other item that is not necessary for a decision"); 52.7(a)(1) (stating that relator must file with petition "a certified or sworn copy of every document that is material to the relator's claim for relief . . ."); Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding).
Thus, we ORDER relator, within 10 days of the date of this order, to file a supplemental appendix containing the relevant portions of the clerk's and reporter's records that are material to its claim for relief. See TEX. R. APP. P. 52.7(a), (b). Relator's supplemental appendix must be filed with the Clerk of this Court within 10 days of the date of this notice or this Court may dismiss this petition. See TEX. R. APP. P. 42.3(c).
Finally, the Court requests a response to the petition for writ of mandamus by any real party in interest. See TEX. R. APP. P. 52.8(b)(1). The response, if any, shall be filed within 30 days from the date of this order. See id. 2, 52.4.
It is so ORDERED. Judge's signature: /s/ Laura Carter Higley
[×] Acting individually [ ] Acting for the Court Date: October 13, 2016