The opinion
ACCEPTED
01-15-00705-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/8/2015 2:09:36 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00705-CV
In the Court of Appeals FILED IN
1st COURT OF APPEALS
For the First Judicial District of Texas HOUSTON, TEXAS
Houston, Texas 12/8/2015 2:09:36 PM
CHRISTOPHER A. PRINE
Clerk
Jay H. Cohen,
Appellant
v.
Tour Partners, Ltd.; Dennis J. Wilkerson; and Eighteen Investments, Inc.,
Appellees
On Appeal from Cause No. 2013-68181
In The 55th District Court of Harris County, Texas
The Honorable Judge Shadwick, Presiding
Appellees’ Response to Appellant’s Motion for Extension
Hawash Meade Gaston
Neese & Cicack LLP
Walter J. Cicack
Texas Bar No. 04250535
Samuel B. Haren
Texas Bar No. 24059899
2118 Smith Street
Houston, Texas 77002
713-658-9001 (phone)
713-658-9011 (fax)
wcicack@hmgnc.com
sharen@hmgnc.com
Attorneys for Appellees
and Cross Appellant
Appellant Jay H. Cohen’s opening brief was due on November 13, 2015. He
did not file one until December 8, 2015. His excuses for his tardiness are vague and
self-contradictory, and the Court should not permit him to file his late brief.
Background
Cohen and Cross-Appellee Tour Partners, Ltd. (“Tour Partners”) were
involved in related lawsuits before the 55th and 269th District Courts of Harris
County, Texas (the “55th Case” and “269th Case,” respectively). The 55th Case led
to the instant appeal. Cohen’s appeal of the 269th Case was docketed in the
Fourteenth Court of Appeals as Cause Number 14-15-00392-CV. Cohen requested
and received three extensions of his briefing deadline, but he never filed his opening
brief—or even a fourth request for extension—in that appeal. See Exhibit 1, 14th
Court Motion to Dismiss (detailing Cohen’s history of extensions). The Fourteenth
Court dismissed Cohen’s appeal of the 269th Case on November 10, 2015. See
Exhibit 2, 14th Court Memorandum Opinion.
Cohen’s opening brief was due in the instant appeal on November 13, 2015.
Cohen did not meet that deadline. Tour Partners filed a Motion to Dismiss on
November 23, 2015, which is incorporated herein. On November 24, 2015, the Court
issued a Notice of Late Brief which warned Cohen that his appeal could be dismissed
unless he filed a brief and motion for extension by December 4, 2015. That notice
further stated that an untimely brief would only be accepted if Cohen could
“reasonably explain [his] failure to timely file [his] brief” and if Tour Partners “is
not significantly injured” by Cohen’s failure to comply with his briefing deadline.
Cohen missed that deadline as well.
On December 8, 2015, Cohen filed his brief and motion for extension (the
“Motion”). But his Motion does not offer a reasonable explanation for his failure to
meet his briefing deadline.
Discussion
I. Cohen’s explanations for his untimely brief are vague and contradictory.
According to Cohen, he should be excused from his briefing deadline because
(1) he was too sick to file a timely motion for extension and (2) he has been too busy
to timely file a motion for extension. That is, Cohen says he was unable to draft a
two-page motion for extension despite having the time and ability to try a case,
prepare for three other trials, attend two mediations, participate in a tax protest
hearing, prepare for and conduct an involved shareholder meeting, respond to
discovery, and perform “[v]arious other time-sensitive matters for clients.” See
Motion at 3–4. Apparently, filing a motion to extend a briefing deadline in this Court
was not one of those a “time-sensitive matters” Cohen’s attorney—or his partner—
chose to perform.
Cohen’s Motion does not list all of the relevant “other matters” on which his
attorney worked. For example, Cohen’s counsel was not so ill as to prevent him from
2
filing a motion to extend in his case against Tour Partners in the Fourteenth Court
on September 9, 2015, nor was he too busy to file a new lawsuit on behalf of Cohen
on October 22, 2015. See Exhibit 3, Third Motion for Extension; Exhibit 4, Cohen’s
District Court Petition. Moreover, Cohen’s attorney further fails to explain how his
illness and family matters prevented him from filing a timely motion for extension
or contacting Tour Partners regarding his predicament but did not prevent him from
completing the tasks described in his Motion as well as the “[v]arious other time-
sensitive matters for clients.” In short, Cohen has failed to provide a “reasonable
explanation” for his delay.
II. Tour Partners would be injured if Court accepts Cohen’s untimely brief.
Tour Partners has filed a cross appeal in this case.1 That appeal would provide
an alternative basis to uphold the trial court’s ruling in the event Cohen would
otherwise succeed in the instant appeal. If Cohen does not succeed in his appeal,
Tour Partner’s cross appeal will be moot. Because Cohen’s other appeal was
dismissed by the Fourteenth Court, Tour Partners asked Cohen on November 16,
2015 whether he intended to file a brief in this appeal. See Exhibit 8,
1
Tour Partners won both the 55th and 269th Cases on summary judgment. See Exhibit 5, 269th
Summary Judgment Order; Exhibit 6, 55th First Summary Judgment Order. After the 269th Court
issued a final judgment, Tour Partners filed a supplemental motion for summary judgment in the
55th Case based on res judicata. Because Tour Partners had already defeated Cohen’s claims, the
55th Court denied that supplemental motion as moot. See Exhibit 7, 55th Second Summary
Judgment Order.
3
Correspondence. Cohen did not respond to that email, nor did he (1) explain his
difficulties in filing a brief nor (2) ask Tour Partners to agree to an extension.2 Had
he done so in a timely manner, Tour Partners would have certainly considered
agreeing to an extension based on the health of Cohen’s attorney. Tour Partners
agreed to Cohen’s first request for an extension in the Fourteenth Court of Appeals,
demonstrating its reasonableness in these matters. See Exhibit 9, Cohen’s First
Motion for Extension.
Due to the Fourteenth Court’s dismissal of Cohen’s other appeal and Cohen’s
lack of any indication that he intended to file a brief or seek an extension in this
appeal, Tour Partners correctly surmised that Cohen did not intend to file a timely
brief in this case. As a result, Tour Partners did not undertake the time and expense
of drafting an unnecessary brief. If Cohen is allowed to file his untimely brief, Tour
Partners will not be able to present its cross appeal unless the Court grants it leave
to do so.
Conclusion
Cohen did not file his brief or Motion until well after the deadline. As detailed
in Tour Partners’ previously-filed Motion to Dismiss, Cohen is a serial-offender in
this regard. Cohen has not provided a cogent or reasonable explanation for his
2
Cohen’s certificate of conference notwithstanding, he has not communicated with Tour Partners
at all regarding his briefing in this case, let alone conferred on his request for an extension of his
briefing deadline.
4
failure, and allowing Cohen to file an untimely brief would harm Tour Partners. Tour
Partners prays that the Court dismiss Cohen’s appeal, issue a final judgment, and
grant Tour Partners all other relief to which it is entitled.
In the event the Court accepts Cohen’s untimely brief, Tour Partners asks for
fourteen (14) days to file its opening brief on its cross appeal.
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. 24059899
2118 Smith Street
Houston, Texas 77002
713-658-9001 (phone)
713-658-9011 (fax)
wcicack@hmgnc.com
sharen@hmgnc.com
Attorneys for Appellees and
Cross-Appellant
5
Certificate of Service
I hereby certify that a true and correct copy of the foregoing was served on
the following via Electronic Service, on December 8, 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
6
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
For the Fourteenth Judicial District of Texas
Houston, Texas
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 <george@twomeymay.com>
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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-----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' <george@twomeymay.com>; Sam Haren <sharen@hmgnc.com>
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 <sharen@hmgnc.com>; Walter Cicack <wcicack@hmgnc.com>
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
ACCEPTED
14-15-00392-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
9/9/2015 5:51:38 PM
CHRISTOPHER PRINE
CLERK
NO: 14-15-00392-CV
IN THE FOURTEENTH DISTRICT COURT OF APPEALS
AT HOUSTON, TEXAS
JAY H. COHEN,
Appellant
v.
TOUR PARTNERS, LTD,
Appellee
From the 269th Judicial District Court of Harris County, Texas
Trial Court Cause No. 2013-41051
APPELLANT’S THIRD MOTION FOR EXTENSION OF TIME TO
FILE APPELLANT’S BRIEF TO ALLOW TIME FOR
SUPPLEMENTAL RECORD TO BE FILED
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Pursuant to Texas Rule of Appellate Procedure 26.3, Appellant Jay H.
Cohen files this Motion for Extension of Time to File his Appellant’s Brief,
which motion complies with Rule 10.5(b), and in support thereof would
respectfully show as follows:
1. This is an appeal from a final judgment in Cause No. 2013-41051;
Jay H. Cohen v. Tour Partners, Ltd. and Preston Realty Corporation; in the
269th Judicial District Court of Harris County, Texas.
2. This is Appellant’s third request for an extension of time.
Exhibit 3
Appellant’s first unopposed request was granted on July 9, 2015 and his second
unopposed request was granted on August 13, 2015.
3. The original clerk’s record was incomplete. The clerk’s record
filed failed to contain all of the summary judgment pleadings upon which the
trial court ruled and a supplemental record was requested on July 29, 2015.
4. Appellant also filed an Unopposed Motion with the Court of
Appeals to permit the filing of the Supplemental Clerk’s Record. The Court of
Appeals granted Appellant’s Unopposed Motion to Supplement the Clerk’s
Record on August 13, 2015.
5. Appellee’s counsel has stated that Appellee opposes this request
for an extension to allow time for the requested Supplemental Clerk’s Record to
be filed.
6. The Supplemental Clerk’s Record has not been prepared or filed.
Attached as Exhibit 1 hereto is Appellant’s counsel’s correspondence of even
date to the Harris County District Clerk requesting that the Supplemental
Clerk’s Record be RUSHED.
7. The extended deadline for Appellant to file his initial brief is
today, September 9, 2015.
8. Because the Supplemental Clerk’s Record has yet to be filed,
Appellant is unable to properly or adequately prepare Appellant’s brief and is
2
requesting an extension of time until the earlier of 14-days after the
Supplemental Clerk’s Record is filed or October 15, 2015.
9. Mr. Cohen does not seek this extension for the purposes of delay.
Appellant seeks this extension in the interest of justice; specifically to permit
the incomplete record to be supplemented pursuant to the pending request to the
trial court clerk.
PRAYER
For all these reasons, Appellant Jay H. Cohen respectfully requests a 30-
day extension of time for filing his Appellant’s Brief from today, September 9,
2015 until the earlier of 14-days after the Supplemental Clerk’s Record is filed
with the Court of Appeals or October 15, 2015. Mr. Cohen also seeks all such
other or further relief to which he may be justly entitled.
TWOMEY | MAY, PLLC
/s/ George F. May/
_______________________________
George F. May
TBA No. 24037050
2 Riverway, 15th Floor
Houston, Texas 77056
(713) 659-0000 [Telephone]
(832) 201-8485 [Telecopier]
george@twomeymay.com
Counsel for Appellant, Jay H. Cohen
3
CERTIFICATE OF CONFERENCE
I certify that on September 9, 2015, I conferred with Sam Haren, co-counsel for
Appellee, via email and counsel stated that Appellee is opposed to this motion.
/s/ George F. May/
_______________________________
George F. May
CERTIFICATE OF SERVICE
As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I
certify that I have served this document on counsel for Appellee as listed below
on September 9, 2015 as follows:
Walter J. Cicack
wcicack@hmgnc.com
HAWASH MEAD GASTON NEESE & CICACK, LLP
2118 Smith Street
Houston, Texas 77002
Telephone: (713) 658-9001
Facsimile: (713) 658-9011
Attorneys for Appellee Tour Partners, Ltd.
By (check all that apply)
personal delivery
commercial delivery service
X fax, email, or electronic service
/s/ George F. May/
George F. May
Date: September 9, 2015
4
TWOMEY | MAY, P.L.L.C. TWOMEY | MAY, P.L.L.C.
Attorneys at Law 2 Riverway, 15th Floor
George F. May Houston, Texas 77056
george@twomeymay.com (713) 659-0000 – Telephone
(832) 201-8485 – Telecopier
August 9, 2015
Mr. Chris Daniel Via E-File and Hand Delivery
District Clerk, Civil Division
Attn: Ms. Phyllis Washington, Deputy
Post Judgment
P.O. Box 4651
Houston, Texas 77210
RE: Request to Rush Supplemental Clerk’s Record in Appellate Case No. 14-15-00392-CV;
Jay Cohen v. Tour Partners, Ltd. and Preston Realty Corporation; In the Fourteenth
Court of Appeals, Houston, Texas- Trial Court No. 2012-41051
Dear Ms. Washington:
On July 29, 2015, a request to supplement the clerk’s record in the above referenced case was
filed by Appellant Jay Cohen. The request is attached as Exhibit A.
On August 13, 2015, the Fourteenth Court of Appeals granted Mr. Cohen’s motion to
supplement the Clerk’s Record. Notice of the Court of Appeal’s Order is attached as Exhibit B.
The deadline for Mr. Cohen’s Appellant’s brief was set to be today, September 9, 2015. The
supplemental record has not been prepared or filed and Mr. Cohen is requesting that the
preparation and filing of the supplemental clerk’s record be RUSHED and fulfilled on the earliest
possible date.
Please contact me when your office has calculated the estimated cost of the supplemental record
and we will hand-deliver payment the same day.
Thank you for your assistance and cooperation in this urgent matter. Please contact me if you
have any questions.
Very truly yours,
/s/ George F. May/
George F. May
Counsel for Appellant Jay Cohen
Cc: Walter Cicack (via e-mail to wcicack@hmgnc.com)
Sam Haren (via e-mail to sharen@hmgnc.com)
EXHIBIT A
7/29/2015 4:30:28 PM
Chris Daniel - District Clerk Harris County
Envelope No. 6281005
By: Duane Gilmore
Filed: 7/29/2015 4:30:28 PM
NO. 2013-41051
JAY COHEN, § IN THE DISTRICT COURT OF
Plaintiff §
§
v. § HARRIS COUNTY, TEXAS
§
TOUR PARTNERS, LTD., and §
PRESTON REALTY CORPORATION, §
k
Defendants § 269th JUDICIAL DISTRICT
ler
tC
REQUEST FOR SUPPLEMENTAL CLERK’S RECORD
ric
TO THE HONORABLE COURT:
ist
COMES NOW Plaintiff Jay Cohen pursuant to Rule 34.5 of the Texas Rule of Appellate
lD
nie
Procedure to respectfully request that the clerk prepare a supplement to the record in the appeal
Da
from the above numbered and styled case. The supplemental record should be certified and
is
delivered to the Fourteenth Court of Appeals in Appeal Case 14-15-00392-CV.
hr
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Mr. Cohen requests that the following be included in the supplemental record:
of
Image No. 65211494 Plaintiff Jay Cohens Notice of Appeal - filed on 04/28/2015; 2 pages
e
Image No. 64452951 Plaintiff's Motion for New Trial - filed on 02/27/2015; 8 pages
ffic
Image No. 64023492 ORDER SIGNED GRANTING ENTRY OF TEMPORARY ORDERS -
filed on 01/28/2015; 5 pages
yO
Image No. 63171721 Plaintiff Jay Cohen's motion for default judgment against defendant Preston
Realty Corporation - filed on 11/13/2014; 5 pages
Image No. 63171722 Exhibit A - filed on 11/13/2014; 2 pages
op
Image No. 63171723 Exhibit B - filed on 11/13/2014; 2 pages
C
Image No. 63171724 Exhibit C - filed on 11/13/2014; 3 pages
Image No. 63171725 Exhibit C-1 - filed on 11/13/2014; 3 pages
ial
Image No. 63171726 Exhibit C-2 - filed on 11/13/2014; 4 pages
fic
Image No. 63093159 Tour Partner's motion to strike and special exceptions - filed on
11/07/2014; 4 pages
of
Image No. 63171651 Proposed Order - filed on 11/13/2014; 1 page
Un
Image No. 63102481 Notice of submission - filed on 11/07/2014; 1 page
Image No. 63084911 Tour Partner's reply in support of its traditional and no evidence motion for
summary judgment and objections to Cohen's summary judgment evidence - filed on 11/06/2014;
17 pages
Image No. 63084913 Exhibit 20 - filed on 11/06/2014; 12 pages
Image No. 63084914 Exhibit 21 - filed on 11/06/2014; 19 pages
Image No. 63084915 Exhibit 22 - filed on 11/06/2014; 7 pages
Image No. 63030179 Plaintiff's objection and response to defendant's traditional and No-
evidence motion for summary judgment - filed on 11/03/2014; 27 pages
Image No. 63030198 Ex. 16 - filed on 11/03/2014; 8 pages
Image No. 63030180 Exhibit A - filed on 11/03/2014; 6 pages
Image No. 63037684 Exhibit A - filed on 11/03/2014; 2 pages
Image No. 63030181 Exhibit A-1 - filed on 11/03/2014; 15 pages
Image No. 63030192 Exhibit A-10 - filed on 11/03/2014; 22 pages
Image No. 63030193 Exhibit A-11 - filed on 11/03/2014; 3 pages
Image No. 63030194 Exhibit A-12 - filed on 11/03/2014; 5 pages
Image No. 63030195 Exhibit A-13 - filed on 11/03/2014; 5 pages
Image No. 63030196 Exhibit A-14 - filed on 11/03/2014; 6 pages
Image No. 63030197 Exhibit A-15 - filed on 11/03/2014; 3 pages
k
ler
Image No. 63030199 Exhibit A-16a - filed on 11/03/2014; 3 pages
Image No. 63030200 Exhibit A-17 - filed on 11/03/2014; 3 pages
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Image No. 63030201 Exhibit A-18 - filed on 11/03/2014; 9 pages
Image No. 63030202 Exhibit A-19 - filed on 11/03/2014; 5 pages
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Image No. 63030182 Exhibit A-2 - filed on 11/03/2014; 15 pages
Image No. 63030203 Exhibit A-20 - filed on 11/03/2014; 32 pages
ist
Image No. 63030204 Exhibit A-21 - filed on 11/03/2014; 5 pages
lD
Image No. 63030205 Exhibit A-22 - filed on 11/03/2014; 6 pages
Image No. 63030206 Exhibit A-23 - filed on 11/03/2014; 5 pages
nie
Image No. 63030207 Exhibit A-24 - filed on 11/03/2014; 6 pages
Image No. 63030208 Exhibit A-25 - filed on 11/03/2014; 6 pages
Da
Image No. 63030209 Exhibit A-26 - filed on 11/03/2014; 7 pages
Image No. 63030210 Exhibit A-27 - filed on 11/03/2014; 7 pages
is
Image No. 63030211 Exhibit A-28 - filed on 11/03/2014; 6 pages
hr
Image No. 63030183 Exhibit A-3 - filed on 11/03/2014; 2 pages
Image No. 63037683 EXHIBIT A-4 - filed on 11/03/2014; 3 pages
C
Image No. 63030185 Exhibit A-5 - filed on 11/03/2014; 4 pages
of
e
Image No. 63030186 Exhibit A-6 - filed on 11/03/2014; 5 pages
Image No. 63030187 Exhibit A-7 - filed on 11/03/2014; 4 pages
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Image No. 63030188 Exhibit A-8 - filed on 11/03/2014; 4 pages
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Image No. 63030189 Exhibit A-9 - filed on 11/03/2014; 3 pages
Image No. 63030190 Exhibit A-9a - filed on 11/03/2014; 7 pages
Image No. 63030191 Exhibit A-9b - filed on 11/03/2014; 6 pages
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Image No. 63030212 Exhibit B - filed on 11/03/2014; 2 pages
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Image No. 63030213 Exhibit B-1 - filed on 11/03/2014; 4 pages
Image No. 63030214 Exhibit B-2 - filed on 11/03/2014; 7 pages
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Image No. 63030215 Exhibit C - filed on 11/03/2014; -145 pages
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Image No. 63093155 Proposed Order - filed on 11/07/2014; 2 pages
Image No. 63030217 Plaintiff's objection and response to defendant's traditional and No-
of
evidence motion for summary judgment - filed on 11/03/2014; 27 pages
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Image No. 63030236 Exhibit 16 - filed on 11/03/2014; 8 pages
Image No. 63030218 Exhibit A - filed on 11/03/2014; 6 pages
Image No. 63030219 Exhibit A-1 - filed on 11/03/2014; 15 pages
Image No. 63030230 Exhibit A-10 - filed on 11/03/2014; 22 pages
Image No. 63030231 Exhibit A-11 - filed on 11/03/2014; 3 pages
Image No. 63030232 Exhibit A-12 - filed on 11/03/2014; 5 pages
Image No. 63030233 Exhibit A-13 - filed on 11/03/2014; 5 pages
Image No. 63030234 Exhibit A-14 - filed on 11/03/2014; 6 pages
Image No. 63030235 Exhibit A-15 - filed on 11/03/2014; 3 pages
Image No. 63030237 Exhibit A-16a - filed on 11/03/2014; 3 pages
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Image No. 63030238 Exhibit A-17 - filed on 11/03/2014; 3 pages
Image No. 63030239 Exhibit A-18 - filed on 11/03/2014; 9 pages
Image No. 63030240 Exhibit A-19 - filed on 11/03/2014; 5 pages
Image No. 63030220 Exhibit A-2 - filed on 11/03/2014; 15 pages
Image No. 63030241 Exhibit A-20 - filed on 11/03/2014; 32 pages
Image No. 63030242 Exhibit A-21 - filed on 11/03/2014; 5 pages
Image No. 63030243 Exhibit A-22 - filed on 11/03/2014; 6 pages
Image No. 63030244 Exhibit A-23 - filed on 11/03/2014; 5 pages
Image No. 63030245 Exhibit A-24 - filed on 11/03/2014; 6 pages
Image No. 63030246 Exhibit A-25 - filed on 11/03/2014; 6 pages
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Image No. 63030247 Exhibit A-26 - filed on 11/03/2014; 7 pages
Image No. 63030248 Exhibit A-27 - filed on 11/03/2014; 7 pages
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Image No. 63030249 Exhibit A-28 - filed on 11/03/2014; 6 pages
Image No. 63030221 Exhibit A-3 - filed on 11/03/2014; 2 pages
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Image No. 63030222 Exhibit A-4 - filed on 11/03/2014; 5 pages
Image No. 63030223 Exhibit A-5 - filed on 11/03/2014; 4 pages
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Image No. 63030224 Exhibit A-6 - filed on 11/03/2014; 5 pages
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Image No. 63030225 Exhibit A-7 - filed on 11/03/2014; 4 pages
Image No. 63030226 Exhibit A-8 - filed on 11/03/2014; 4 pages
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Image No. 63030227 Exhibit A-9 - filed on 11/03/2014; 3 pages
Image No. 63030228 Exhibit A-9a - filed on 11/03/2014; 7 pages
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Image No. 63030229 Exhibit A-9b - filed on 11/03/2014; 6 pages
Image No. 63030250 Exhibit B - filed on 11/03/2014; 2 pages
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Image No. 63030251 Exhibit B-1 - filed on 11/03/2014; 4 pages
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Image No. 63030252 Exhibit B-2 - filed on 11/03/2014; 7 pages
Image No. 63030253 Exhibit C - filed on 11/03/2014; 145 pages
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Image No. 62928870 Tour Partners Response to Plaintiff's Unopposed Motion to Substitute
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Counsel - filed on 10/27/2014; 2 pages
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Image No. 62861852 Plaintiff Jay Cohen's unopposed Motion to Substitute counsel - filed on
10/22/2014; 4 pages
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Image No. 62861853 proposed order granting motion to substitute counsel - filed on 10/22/2014;
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2 pages
Image No. 62821118 Tour Partners' Traditional and No-Evidence Motion for Summary
Judgment - filed on 10/17/2014; 36 pages
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Image No. 62821121 Exhibit 1 - filed on 10/17/2014; 76 pages
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Image No. 62821130 Exhibit 10 - filed on 10/17/2014; 3 pages
Image No. 62821131 Exhibit 11 - filed on 10/17/2014; 3 pages
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Image No. 62821132 Exhibit 12 - filed on 10/17/2014; 4 pages
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Image No. 62821133 Exhibit 13 - filed on 10/17/2014; 4 pages
Image No. 62821134 Exhibit 14 - filed on 10/17/2014; 4 pages
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Image No. 62821135 Exhibit 15 - filed on 10/17/2014; 7 pages
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Image No. 62821136 Exhibit 16 - filed on 10/17/2014; 15 pages
Image No. 62821137 Exhibit 17 - filed on 10/17/2014; 8 pages
Image No. 62821138 Exhibit 18 - filed on 10/17/2014; 9 pages
Image No. 62821139 Exhibit 19 - filed on 10/17/2014; 5 pages
Image No. 62821122 Exhibit 2 - filed on 10/17/2014; 5 pages
Image No. 62821123 Exhibit 3 - filed on 10/17/2014; 3 pages
Image No. 62821124 Exhibit 4 - filed on 10/17/2014; 19 pages
Image No. 62821125 Exhibit 5 - filed on 10/17/2014; 12 pages
Image No. 62821126 Exhibit 6 - filed on 10/17/2014; 6 pages
Image No. 62821127 Exhibit 7 - filed on 10/17/2014; 45 pages
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Image No. 62821128 Exhibit 8 - filed on 10/17/2014; 2 pages
Image No. 62821129 Exhibit 9 - filed on 10/17/2014; 4 pages
Image No. 62663391 Motion for Withdrawal of Counsel - filed on 10/07/2014; 2 pages
Image No. 62663392 Docket Control Order - filed on 10/07/2014; 1 pages
Image No. 62690110 Exhibit 03 - filed on 10/09/2014; 2 pages
Image No. 62305356 ORDER SIGNED GRANTING ENTRY OF TEMPORARY
ORDERS - filed on 08/25/2014; 1 pages
Image No. 61683924 Discovery Control Plan - filed on 07/23/2014; 1 pages
Image No. 61512462 Plaintiffs Ellington F Holdings LLC's and R. David Denenberg's
Objections and Response in Opposition to Defendant Tour Partners, Ltd.'s Motion to Consolidate
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- filed on 07/10/2014; 7 pages
Image No. 61519437 Supplement to Plaintiff's Response to Defendant, Tour Partners, Ltd.'s,
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Motion for Judicial Review of Documentation or Instrument Purporting to Create a Lien, Claim
or Interest in Real Property - filed on 07/10/2014; 3 pages
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Image No. 61519438 Plaintiffs Ellington F Holdings LLC's and R. David Denenburg's Amended
Objections and Response in Opposition to defendant Tour Partners, Ltd.'s Motion to Consolidate
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- filed on 07/10/2014; 7 pages
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Image No. 61519439 Exhibit 1 - filed on 07/10/2014; 61 pages
Image No. 61519440 Exhibit 2 - filed on 07/10/2014; 7 pages
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Image No. 61519441 Exhibit 3 - filed on 07/10/2014; 15 pages
Image No. 61519442 Proposed Order - filed on 07/10/2014; 1 pages
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Image No. 61528236 Plaintiff's response to defendant, Tour Partners, LTD's motion for judicial
review of documentation or instrument purporting to create a lien, claim or interest in real
is
property - filed on 07/10/2014; 8 pages
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Image No. 61528242 Exhibit A - filed on 07/10/2014; 6 pages
Image No. 61528243 Exhibit B - filed on 07/10/2014; 9 pages
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Image No. 61528244 Exhibit C - filed on 07/10/2014; 5 pages
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Image No. 61528245 Proposed order - filed on 07/10/2014; 1 pages
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Image No. 61528501 Plaintiff's response to defendant, Tour Partners, LTD's motion to
consolidate - filed on 07/10/2014; 2 pages
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Image No. 61528504 Proposed order - filed on 07/10/2014; 1 pages
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Image No. 60738990 Defendant Tour Partners, ltd.'s motion to consolidate - filed on 05/09/2014;
3 pages
Image No. 60738991 Exhibit 1 - filed on 05/09/2014; 1 pages
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Image No. 60738992 Proposed order - filed on 05/09/2014; 2 pages
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Image No. 60741538 Defendant Tour Partners motion for judicial review of documentation or
instrument purporting to create a lien, claim, or interest in real property - filed on 05/09/2014; 6
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pages
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Image No. 60741541 Exhibit 1, Subordination of Lien - filed on 05/09/2014; 4 pages
Image No. 60741543 Proposed order - filed on 05/09/2014; 2 pages
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Image No. 60745044 Exhibit a to Defendants Second amended answer and original counterclaim
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- filed on 05/09/2014; 4 pages
Image No. 58939261 Defendants withdrawal of defendants amended motion to dismiss directed
to plaintiffs first amended petition - filed on 12/24/2013 2 pages
Image No. 58636392 Plaintiff's second amended petition - filed on 12/06/2013 8 pages
Image No. 58636433 Plaintiff's second amended petition - filed on 12/06/2013 8 pages
Image No. 586Image No. 62602 Plaintiff's Response to Tour Partners, Ltd.'s Amended Motion
to Dismiss - filed on 12/06/2013 9 pages
Image No. 58388466 Defendant's Amended Motion to Dismiss Directed to Plaintiff's
First Amended Petition - filed on 11/21/2013 6 pages
Image No. 57990831 Plaintiffs Response to Defendants Motion to Dismiss - filed on 10/25/2013
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4 pages
Image No. 58052445 Plaintiff's First Amended Petition - filed on 10/25/2013 7 pages
Image No. 58052446 Exhibit E - filed on 10/25/2013 3 pages
Image No. 57672083 Defendants Motion to Dismiss - filed on 10/07/2013 9 pages
Image No. 57672084 Original Answer Subject to Motion to Dismiss - filed on 10/07/2013 4
pages
Please expedite this request as the appeal is currently pending. Mr. Cohen will pre-pay
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the estimated cost of the supplemental record immediately.
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: Respectfully submitted,
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TWOMEY | MAY, PLLC
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/s/ George F. May/
_______________________________
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George F. May
State Bar No. 24037050
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2 Riverway, 15th Floor
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Houston, Texas 77056
(713) 659-0000 Telephone
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(832) 201-8485 Facsimile
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george@twomeymay.com
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Attorneys for Plaintiff Jay Cohen
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5
CERTIFICATE OF SERVICE
As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I certify that I have
served this document on all other parties, which are listed below on July 29, 2015 as follows:
Walter J. Cicack
wcicack@hmgnc.com
HAWASH MEAD GASTON NEESE & CICACK, LLP
2118 Smith Street
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Houston, Texas 77002
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Telephone: (713) 658-9001
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Facsimile: (713) 658-9011
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Attorneys for Defendant Tour Partners, Ltd.
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By (check all that apply)
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personal delivery
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commercial delivery service
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fax, email, or electronic service
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/s/ George F. May/
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George F. May
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Date: July 28, 2015
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EXHIBIT B
FILE COPY
FOURTEENTH COURT OF APPEALS
301 Fannin, Suite 245
Houston, Texas 77002
Thursday, August 13, 2015
RE: Case No. 14-15-00392-CV
Style: Jay Cohen
v. Tours Partners, Ltd. and Preston Realty Corporation
Please be advised that on this day the Court GRANTED APPELLANT’S
motion to supplement the record in the above cause.
T. C. Case # 2013-41051 Christopher Prine, Clerk
Harris County, District Clerk, Civil Division
Harris County District Clerk - Civil
201 Caroline, Ste 420
Houston, TX 77002
DELIVERED VIA E-MAIL
FOURTEENTH COURT OF APPEALS
301 Fannin, Suite 245
Houston, Texas 77002
Thursday, August 13, 2015
RE: Case No. 14-15-00392-CV
Style: Jay Cohen
v. Tours Partners, Ltd. and Preston Realty Corporation
Please be advised that on this day the Court GRANTED APPELLANT’S
motion to supplement the record in the above cause.
T. C. Case # 2013-41051 Christopher Prine, Clerk
Harris County, District Clerk, Civil Division
Harris County District Clerk - Civil
201 Caroline, Ste 420
Houston, TX 77002
DELIVERED VIA E-MAIL
Exhibit 4
CertifiedDocumentNumber:63124687-Page1of5
Exhibit 5
7A
Pgs-5
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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Exhibit 6
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Exhibit 7
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 <wcicack@hmgnc.com>; George May <george@twomeymay.com>
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 <george@twomeymay.com>
Cc: Sam Haren <sharen@hmgnc.com>
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 8
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
ACCEPTED
14-15-00392-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
7/8/2015 4:55:58 PM
CHRISTOPHER PRINE
CLERK
Exhibit 9