# Jay Cohen v. Tour Partners, LTD., Dennis J. Wilkerson, and Eighteen Investments, Inc. > Texas Court of Appeals, 1st District (Houston) · December 8, 2015 URL: https://www.frixlaw.com/law-library/cases/4074347 ## Case - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** December 8, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4074347 ## Opinion text 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 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) strictly confidential. If you are not the intended recipient of this message, you may not disclose, print, copy or disseminate this information. If you have received this in error, please reply and notify the sender (only) and delete the message. Unauthorized interception of this e-mail is a violation of federal criminal law. This communication does not reflect an intention by the sender or the sender's client or principal to conduct a transaction or make any agreement by electronic means. Nothing contained in this message or in any attachment shall satisfy the requirements for a writing, and nothing contained herein shall constitute a contract or electronic signature under the Electronic Signatures in Global and National Commerce Act, any version of the Uniform Electronic Transactions Act or any other statute governing electronic 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 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 mail 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 C 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 tC 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 ric 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 ffic Image No. 63030188 Exhibit A-8 - filed on 11/03/2014; 4 pages yO 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 op Image No. 63030212 Exhibit B - filed on 11/03/2014; 2 pages C 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 ial Image No. 63030215 Exhibit C - filed on 11/03/2014; -145 pages fic 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 Un 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 2 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 k ler 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 tC 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 ric 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 ist Image No. 63030224 Exhibit A-6 - filed on 11/03/2014; 5 pages lD 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 nie 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 Da 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 is Image No. 63030251 Exhibit B-1 - filed on 11/03/2014; 4 pages hr 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 C Image No. 62928870 Tour Partners Response to Plaintiff's Unopposed Motion to Substitute of Counsel - filed on 10/27/2014; 2 pages e Image No. 62861852 Plaintiff Jay Cohen's unopposed Motion to Substitute counsel - filed on 10/22/2014; 4 pages ffic Image No. 62861853 proposed order granting motion to substitute counsel - filed on 10/22/2014; yO 2 pages Image No. 62821118 Tour Partners' Traditional and No-Evidence Motion for Summary Judgment - filed on 10/17/2014; 36 pages op Image No. 62821121 Exhibit 1 - filed on 10/17/2014; 76 pages C Image No. 62821130 Exhibit 10 - filed on 10/17/2014; 3 pages Image No. 62821131 Exhibit 11 - filed on 10/17/2014; 3 pages ial Image No. 62821132 Exhibit 12 - filed on 10/17/2014; 4 pages fic Image No. 62821133 Exhibit 13 - filed on 10/17/2014; 4 pages Image No. 62821134 Exhibit 14 - filed on 10/17/2014; 4 pages of Image No. 62821135 Exhibit 15 - filed on 10/17/2014; 7 pages Un 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 3 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 k ler - filed on 07/10/2014; 7 pages Image No. 61519437 Supplement to Plaintiff's Response to Defendant, Tour Partners, Ltd.'s, tC 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 ric 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 ist - filed on 07/10/2014; 7 pages lD Image No. 61519439 Exhibit 1 - filed on 07/10/2014; 61 pages Image No. 61519440 Exhibit 2 - filed on 07/10/2014; 7 pages nie Image No. 61519441 Exhibit 3 - filed on 07/10/2014; 15 pages Image No. 61519442 Proposed Order - filed on 07/10/2014; 1 pages Da 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 hr Image No. 61528242 Exhibit A - filed on 07/10/2014; 6 pages Image No. 61528243 Exhibit B - filed on 07/10/2014; 9 pages C Image No. 61528244 Exhibit C - filed on 07/10/2014; 5 pages of Image No. 61528245 Proposed order - filed on 07/10/2014; 1 pages e Image No. 61528501 Plaintiff's response to defendant, Tour Partners, LTD's motion to consolidate - filed on 07/10/2014; 2 pages ffic Image No. 61528504 Proposed order - filed on 07/10/2014; 1 pages yO 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 op Image No. 60738992 Proposed order - filed on 05/09/2014; 2 pages C 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 ial pages fic 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 of Image No. 60745044 Exhibit a to Defendants Second amended answer and original counterclaim Un - 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 4 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 k ler the estimated cost of the supplemental record immediately. tC : Respectfully submitted, ric TWOMEY | MAY, PLLC ist lD /s/ George F. May/ _______________________________ nie George F. May State Bar No. 24037050 Da 2 Riverway, 15th Floor is Houston, Texas 77056 (713) 659-0000 Telephone hr (832) 201-8485 Facsimile C george@twomeymay.com of Attorneys for Plaintiff Jay Cohen e ffic yO op C ial fic of Un 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 k Houston, Texas 77002 ler Telephone: (713) 658-9001 tC Facsimile: (713) 658-9011 ric Attorneys for Defendant Tour Partners, Ltd. ist By (check all that apply) lD personal delivery nie mail commercial delivery service X Da fax, email, or electronic service is hr /s/ George F. May/ C George F. May of Date: July 28, 2015 e ffic yO op C ial fic of Un 6 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 Un of fic ial Co py O ffic e of C hr is Exhibit 6 Da nie lD ist ric t Cl er k Un of fic ial Co py O ffic e of C hr is Da nie lD ist ric t Cl er k Un of fic ial Co py O ffic e of C hr is Da nie lD ist ric t Cl er k Un offic ial C opy O ffic e of C hr is Da nie lD ist ric t Cl er k 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 ; 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4074347. Public record. Not legal advice.