COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Joel D. Mallory, Jr. v. Arctic Pipe Inspection Company;
Joel D. Mallory, Jr. v. Locker & Lee, P.C.
Appellate case number: 01-12-00979-CV; 01-13-00563-CV
Trial court case number: 2004-06321-A; 2004-06321-B
Trial court: 129th District Court of Harris County
Appellant, Joel D. Mallory, Jr., has filed a motion to consolidate appellate cause number
01-13-00563-CV, Joel D. Mallory, Jr. v. Locker & Lee, P.C., into appellate cause number 01-12-
00979-CV, Joel D. Mallory, Jr. v. Arctic Pipe Inspection Company. In his motion, Mallory
contends that the issues in the cases “are based upon identical operative facts and based upon the
same appellate record” and that “his argument against Locker would, to a large extent, mirror his
argument made against Arctic.” Mallory requests consolidation of the appeals for all purposes
or, alternatively, transfer of the appellate record from cause 01-12-00979-CV to 01-13-00563-
CV. Mallory further requests abeyance of the filing fee in cause 01-13-00563-CV.
Mallory cites to no authority to support his argument that these appeals should be
consolidated.1 And, as Mallory points out, Texas Rule of Civil Procedure 41, which authorizes
the consolidation of cases at the trial-court level, is inapplicable to appellate proceedings. See
TEX. R. CIV. P. 2, 41. Further, although Mallory has already filed a brief in cause 01-12-00979-
CV and Arctic Pipe’s brief is due by August 1, 2013, the clerk’s record has not been filed and is
not due until July 30, 2013 in cause 01-13-00563-CV. Therefore, permitting joint briefing of
these cases would not be practical and, as noted in our previous order, would undermine the
purpose of the severance sought and granted to Arctic Pipe. Accordingly, to the extent Mallory
requests consolidation of these appeals, we deny the motion.
Nevertheless, to the extent the clerk’s record consists of the same documents in each of
these appeals, we will not require Mallory to pay for, or the trial court clerk to prepare and file, a
1
Mallory cites solely to State v. Life Partners Holdings, Inc., Nos. 03-12-00695-CV, 03-
13-00195-CV, 2013 WL 1955851, at *1 (Tex. App.—Austin May 8, 2013, no pet.), to
support his argument for consolidation. That case is inapposite, however, as that court
merely consolidated an interlocutory appeal with an appeal from the final judgment in the
same trial court case. 2013 WL 1955851, at *1.
clerk’s record containing the documents already in the appellate record in cause 01-12-00979-
CV. We therefore grant Mallory’s motion in part and order the Clerk of this Court to transfer a
copy of the clerk’s record filed in cause 01-12-00979-CV to cause 01-13-00563-CV.
We further order that, no later than 30 days from the date of this order, appellant file with
this Court proof that he has paid or made arrangements to pay for preparation of a supplemental
clerk’s record, to be filed in cause 01-13-00563-CV, containing the documents relevant to trial
court cause number 2004-06321-B2, or appellate cause 01-13-00563-CV will be dismissed. See
TEX. R. APP. P. 34.5(a), 35.3(a)(2), 37.3(b).
Finally, we deny Mallory’s request for an abeyance of the filing fee in cause 01-13-
00563-CV, but grant his request for a thirty-day extension to pay the filing fee.
It is so ORDERED.
Judge’s signature: /s/ Harvey Brown
Acting individually Acting for the Court
Date: August 1, 2013
2
The original trial court cause number was 2004-06321. Mallory’s claims against Arctic
Pipe were assigned cause number 2004-06321-A when the trial court granted Arctic
Pipe’s motion for severance. Mallory’s claims against Locker & Lee were assigned
cause number 2004-06321-B.