Opinion
No. 04-16-00739-CV
12-08-2016
Kara LERMA, Appellant v. PIPE MOVERS, INC., Appellee
COURT OF APPEALS FOURTH COURT OF APPEALS DISTRICT CADENA-REEVES JUSTICE CENTER SANDEE BRYAN MARION CHIEF JUSTICE
KAREN ANGELINI MARIALYN BARNARD REBECA C. MARTINEZ PATRICIA O. ALVAREZ LUZ ELENA D. CHAPA JASON PULLIAM JUSTICES David Jenkins
The Saenz Law Firm
P.O. Box 923
1103 E. Riley St.
Freer, TX 78357
* DELIVERED VIA E-MAIL * Gilbert Saenz
Saenz Law Firm
P.O. Box 923
1103 East Riley
Freer, TX 78357-0923
* DELIVERED VIA E-MAIL * Andres Humberto Gonzalez Jr.
David Klosterboer & Associates
9601 McAllister Fwy Ste 910
San Antonio, TX 78216-4681
* DELIVERED VIA E-MAIL *
Enclosed please find the order which the Honorable Court of Appeals has issued in reference to the above styled and numbered cause.
If you should have any questions, please do not hesitate to contact me.
Very truly yours,
KEITH E. HOTTLE, CLERK
/s/_________
Rosa Gonzalez
Deputy Clerk, Ext. 53855 cc: Sonia G. Trevino (DELIVERED VIA E-MAIL)
R. David Guerrero (DELIVERED VIA E-MAIL) From the 79th Judicial District Court, Jim Wells County, Texas
Trial Court No. 16-09-56471-CV
Honorable Richard C. Terrell, Judge Presiding
ORDER
Appellant filed a notice of appeal from a trial court's September 22, 2016 order granting summary judgment in favor of appellee. The notice of appeal was filed under trial court cause number 14-12-54007-CV, and this court assigned the appeal appellate number 04-16-00692-CV. Subsequently, appellant filed an amended notice of appeal, but this amended notice of appeal — although it stated it was from the same September 22, 2016 summary judgment order — was filed under trial court cause 16-09-56471. Thus, there are two appeals currently pending, under separate trial and appellate court numbers, from the same order.
Subsequently, appellant filed a motion to consolidate and apply fees. In this motion, appellant explained that when the trial court signed the September 22, 2016 order, the order included a severance. However, the order did not assign a new trial court number to the severed action. According to appellant, the district clerk refused to assign the severed action a new cause number pending the payment of a fee by appellee. Appellant, out of an abundance of caution, filed his notice of appeal under the original trial court cause number — there being no severed trial court number in which to file the notice of appeal. Appellant then filed an amended notice of appeal once the fee in question was paid and the district clerk assigned the severed cause — the cause from which appellant intended to appeal — trial court number 16-09-56471. In the motion to consolidate and apply fees, appellant sought to consolidate 04-16-00692-CV and 04-16-00739-CV and apply the filing fees paid in 04-16-00692-CV.
The clerk's record has been filed in 04-16-00739-CV, establishing appellant's assertions as set forth in the motion to consolidate and apply fees. And, appellee filed a response to appellant's motion stating it is unopposed. However, after review, we find that consolidation is not the proper resolution as it would allow both cause numbers to remain open and would require a record and fees to be filed in both cause numbers. Accordingly, after review, we ORDER the clerk of this court to administratively close appellate number 04-16-00692-CV. We ORDER the clerk of this court to: (1) apply the filing fees paid in appellate number 04-16-00692-CV to appellate number 04-16-00739-CV, and (2) transfer all filings in appellate number 04-16-00692-CV to appellate number 04-16-00739-CV. We further ORDER the district clerk of Jim Wells County to file a supplemental clerk's record in this court on or before JANUARY 9, 2017 in appellate number 04-16-00739-CV, which should include all pertinent filings, as required by Rule 34.5(a) of the Texas Rules of Appellate Procedure, from trial court cause number 14-12-54007-CV and the notice of appeal filed under trial court cause number 14-12-54007-CV.
Based on the foregoing, we DENY IN PART and GRANT IN PART appellant's motion to consolidate and apply fees. Based on the administrative closing of appellate number 04-16-00692-CV, we DENY the motion to consolidate, but GRANT the portion of the motion asking that the court apply the fees filed in appellate number 04-16-00692-CV to appellate number 04-16-00739-CV. All future filings in this matter should be filed under 04-16-00739-CV.
We order the clerk of this court to serve a copy of this order on all counsel, the district clerk, and the court reporter, if any.
/s/_________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 8th day of December, 2016.
/s/_________
Keith E. Hottle
Clerk of Court