# Jay Cohen v. Tour Partners, LTD., Dennis J. Wilkerson, and Eighteen Investments, Inc.

> Texas Court of Appeals, 1st District (Houston) · November 23, 2015

URL: https://www.frixlaw.com/law-library/cases/4073842

## Case

- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** November 23, 2015
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4073842

## Opinion text

ACCEPTED
14-15-00392-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
10/19/2015 2:51:00 PM
CHRISTOPHER PRINE
CLERK

No. 14-15-00392-CV

In the Court of Appeals FILED IN
1st COURT OF APPEALS
For the Fourteenth Judicial District of Texas HOUSTON, TEXAS
Houston, Texas 11/23/2015 5:50:17 PM
CHRISTOPHER A. PRINE
Clerk
Jay H. Cohen,
Appellant

v.

Tour Partners, Ltd.,
Appellee

On Appeal from Cause No. 2013-41051
In The 269th District Court of Harris County, Texas
The Honorable Judge Hinde, Presiding

Tour Partners’ Motion to Dismiss for Want of Prosecution

Hawash Meade Gaston
Neese & Cicack LLP
Walter J. Cicack
Texas Bar No. 04250535
Samuel B. Haren
Texas Bar No. 24032854
2118 Smith Street
Houston, Texas 77002
713-658-9001 (phone)
713-658-9011 (fax)
wcicack@hmgnc.com
sharen@hmgnc.com
Attorneys for Appellee
Tour Partners, Ltd.

Exhibit 1
Appellant Jay H. Cohen (“Cohen”) has received three extensions of his

briefing deadline. Despite these extensions, Cohen still has not filed his brief. As

demonstrated below, the Court should dismiss Cohen’s appeal for want of

prosecution.

Background

The initial clerk’s record was filed on June 10. Cohen’s opening brief was

initially due on July 10. Cohen has requested three extensions of his briefing

deadline:

 First Extension: Two days before his initial deadline, Cohen sought a
thirty-one day extension based on his attorney’s busy schedule. Appellee
Tour Partners, Ltd. (“Tour Partners”) did not oppose this request. The
Court granted the thirty-one day extension.

 Second Extension: The day of the second deadline, Cohen sought a thirty-
day extension based on his dissatisfaction with the contents of the Clerk’s
Record. Tour Partners did not oppose this request. The Court granted the
thirty-day extension.

 Third Extension: The day of the third deadline, Cohen sought another
extension based on his dissatisfaction with the Contents of the Clerk’s
Record. Because Cohen’s own inattention to the file caused the lateness of
the Clerk’s Record, Tour Partners opposed this request. The Court
(1) granted a thirty-six day extension and (2) warned that “no further
extensions will be granted absent exceptional circumstances . . . .”
Order Granting Third Motion to Extend (emphasis in original).

Cohen’s final deadline to file his brief was Thursday, October 15. As of the

afternoon of Monday, October 19, Cohen still has not filed his brief.
Discussion

“If an appellant fails to timely file a brief,” Texas Rule of Appellate Procedure

38.8(a)(1) allows the Court to “dismiss the appeal for want of prosecution, unless

the appellant reasonably explains the failure . . . .” Despite three extensions, Cohen

has failed to timely file a brief.

According to Cohen, this failure was caused by Cohen’s confusion over the

contents of his own record:

In reviewing the brief as drafted last week, I realized that it had been
drafted assuming that no summary judgment evidence was excluded.
The order granting in part some of your objections had not made it into
the record. I immediately emailed Sam [Haren, attorney for Tour
Partners,] and you to ask permission to include the order as a tab to the
brief, which Sam indicated was not opposed.1 To not mislead the Court,
I then attempted to re-draft the brief to ensure that there was no error as
to the summary judgment evidence admitted, and I also had to address
the exclusions. The re-write was too significant (as you can imagine) to
complete in time. I have redrafted the brief and will be filing it
tomorrow with a motion to extend time to the filing date. Unless you
tell me otherwise, I will assume you are opposed to the extension.

Exhibit 1, Email from May to Cicack at 1 (emphasis added). That is, Cohen failed

to meet his fourth briefing deadline because he once again did not thoroughly

examine the Clerk’s Record until the evening his brief was due.2

1
The request referenced by Cohen was sent at 5:24 p.m. on the October 15 briefing deadline. See
Exhibit 1, Email from May to Cicack at 2. Tour Partners’ counsel agreed to this request. Id.
2
In assessing this inattention, the Court should note that Cohen’s current appellate counsel also
represented him at the time of the evidentiary ruling in question.

2
Prayer

Cohen has had three chances to file his brief on time. Tour Partners

respectfully submits that the Court should not indulge Cohen’s continued lack of

diligence by granting him a strike four. Tour Partners prays that the Court dismiss

Cohen’s appeal for want of prosecution and grant Tour Partners all other relief to

which it is entitled.

Respectfully submitted,

Hawash Meade Gaston
Neese & Cicack LLP

/s/ Walter J. Cicack
Walter J. Cicack
Texas Bar No. 04250535
Samuel B. Haren
Texas Bar No. 24032854
2118 Smith Street
Houston, Texas 77002
713-658-9001 (phone)
713-658-9011 (fax)
wcicack@hmgnc.com
sharen@hmgnc.com

Attorneys for Appellee
Tour Partners, Ltd.

3
Certificate of Conference

I hereby certify that I have conferred with opposing counsel concerning the

relief requested herein. Opposing counsel is opposed.

/s/ Samuel B. Haren
Samuel B. Haren

Certificate of Service

I hereby certify that a true and correct copy of the foregoing was served on

the following via Electronic Service, on October 19, 2015:

George F. May
Twomey | May, PLLC
2 Riverway, 15th Floor
Houston, Texas 77056
george@twomeymay.com

Attorney for Appellant
Jay H. Cohen

/s/ Samuel B. Haren
Samuel B. Haren

4
From: George May
Sent: Monday, October 19, 2015 12:32 PM
To: Walter Cicack; Sam Haren
Subject: RE: Cohen v. Preston, Tour Partners

Walter,

I am preparing for a shareholders' meeting for a corporate client today.

In reviewing the brief as drafted last week, I realized that it had been drafted assuming that no summary judgment
evidence was excluded. The order granting in part some of your objections had not made it into the record. I immediately
emailed Sam and you to ask permission to include the order as a tab to the brief, which Sam indicated was not opposed.
To not mislead the Court, I then attempted to re-draft the brief to ensure that there was no error as to the summary
judgment evidence admitted, and I also had to address the exclusions. The re-write was too significant (as you can
imagine) to complete in time. I have redrafted the brief and will be filing it tomorrow with a motion to extend time to the
filing date. Unless you tell me otherwise, I will assume you are opposed to the extension.

Should you wish to file a motion to dismiss, which I of course would oppose, please note the above for the Court. I am
tied up today but available in the morning tomorrow if you wish to talk.

George F. May, BS, JD
Twomey | May, PLLC
2 Riverway, 15th Floor
Houston, Texas 77056
(713) 659-0000
(832) 201-8485 – Facsimile
george@twomeymay.com

NOTICE: This transmission may be: (1) subject to the Attorney-Client Privilege, (2) an attorney work product, or (3)
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transactions.

-----Original Message-----
From: Walter Cicack [mailto:wcicack@hmgnc.com]
Sent: Monday, October 19, 2015 11:59 AM
To: George May; Sam Haren
Subject: RE: Cohen v. Preston, Tour Partners

George, I just left you a message. I just want to make sure we did not miss something. If you filed something in the appeal
of the Cohen case I did not get it. Assuming you did not file something, we will file a motion to dismiss and I wanted to see
if you opposed. Please get back to me. Thanks

Walter Cicack
(713) 658-9003 (direct)

-----Original Message-----
From: Walter Cicack
Sent: Friday, October 16, 2015 4:35 PM
To: 'George May' ; Sam Haren
1

Exhibit 1
Subject: RE: Cohen v. Preston, Tour Partners

George, did you file something? We did not receive anything.

Walter Cicack
(713) 658-9003 (direct)

-----Original Message-----
From: George May [mailto:george@twomeymay.com]
Sent: Thursday, October 15, 2015 5:24 PM
To: Sam Haren ; Walter Cicack
Subject: Cohen v. Preston, Tour Partners

Sam and/or Walter,

Judge Hinde's order on your summary judgment objections did not make it into the record somehow. May I include a copy
as a tab with the appendix?

George May
Twomey May, PLLC
Two Riverway, 15th Floor
Houston, Texas 77056
(713) 659-0000
(281) 201-8485 - fax
george@twomeymay.com

2
Motion Granted; Appeal Dismissed and Memorandum Opinion filed
November 10, 2015.

In The

Fourteenth Court of Appeals

NO. 14-15-00392-CV

JAY COHEN, Appellant
V.

TOURS PARTNERS, LTD. AND PRESTON REALTY CORPORATION,
Appellee

On Appeal from the 269th District Court
Harris County, Texas
Trial Court Cause No. 2013-41051

MEMORANDUM OPINION

This is an appeal from a judgment signed January 28, 2015. The clerk’s
record was filed June 10, 2015. No reporter’s record was taken. Appellant’s brief
was due October 15, 2015. No brief was filed.

On October 29, 2015, appellee filed a motion to dismiss for want of
prosecution. See Tex. App. P. 42.3(b). Appellant filed no response. Accordingly,

Exhibit 2
appellee’s motion is granted and the appeal is ordered dismissed.

PER CURIAM

Panel consists of Justices Boyce, Busby, and Brown.

2
Sam Haren
From: Walter Cicack
Sent: Monday, November 16, 2015 7:28 PM
To: Sam Haren; George May
Subject: RE: Status of Appeal

George, would you at least give us the professional courtesy of a response? Thank you.

Walter Cicack
(713) 658‐9003 (direct)

From: Sam Haren
Sent: Monday, November 16, 2015 11:02 AM
To: Walter Cicack ; George May
Subject: RE: Status of Appeal

George,

After the expiration of last Friday’s deadline, Walter asked me to touch base with you regarding your appeal. Do you still
intend to go forward with Cohen’s remaining case?

Thanks,

Sam

From: Walter Cicack
Sent: Tuesday, November 10, 2015 10:24 AM
To: George May
Cc: Sam Haren
Subject: Status of Appeal

George, it appears that you decided not to file a brief in the appeal of Judge’s Hinde’s judgment despite the fact that you
said you were going to do so and instructed me to inform the court of appeals that you were going to do so.  I will not
even ask you what you intend to do in the other appeal since I cannot rely on your answer.  But I do have a simple
question‐‐ do you oppose our motion asking for leave to allow us to file our brief after you file your brief? As you know,
if Cohen does not pursue the appeal, our appeal point is moot and briefing would not be required. Please let me know
your position on this by 3 pm tomorrow. If you have any questions, please let me know. Thank you for your
consideration.

Walter J. Cicack
Partner

2118 Smith Street | Houston, TX 77002
tel (713) 658-9003 | mobile (713) 299-2127
fax (713) 658-9011

website | vCard | map | email

This email may be a privileged communication. If you are not the intended recipient, please delete it.

1

Exhibit 3

2
Sam Haren
From: Walter Cicack
Sent: Tuesday, November 10, 2015 10:24 AM
To: George May
Cc: Sam Haren
Subject: Status of Appeal

George, it appears that you decided not to file a brief in the appeal of Judge’s Hinde’s judgment despite the fact that you
said you were going to do so and instructed me to inform the court of appeals that you were going to do so.  I will not
even ask you what you intend to do in the other appeal since I cannot rely on your answer.  But I do have a simple
question‐‐ do you oppose our motion asking for leave to allow us to file our brief after you file your brief? As you know,
if Cohen does not pursue the appeal, our appeal point is moot and briefing would not be required. Please let me know
your position on this by 3 pm tomorrow. If you have any questions, please let me know. Thank you for your
consideration.

Walter J. Cicack
Partner

2118 Smith Street | Houston, TX 77002
tel (713) 658-9003 | mobile (713) 299-2127
fax (713) 658-9011

website | vCard | map | email

This email may be a privileged communication. If you are not the intended recipient, please delete it.

1
CertifiedDocumentNumber:63124687-Page1of5

Exhibit 4
7A
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CertifiedDocumentNumber:63124687-Page2of5
CertifiedDocumentNumber:63124687-Page3of5
CertifiedDocumentNumber:63124687-Page4of5
CertifiedDocumentNumber:63124687-Page5of5
I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this March 30, 2015

Certified Document Number: 63124687 Total Pages: 5

Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4073842. Public record. Not legal advice.