Joseph Andre Davis v. Sandra Lopez

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.

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