Garry L. Rollins and Carla D. Rollins v. Texas College and MPF Investments, LLC D/B/A "A-1 Rent All"

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ACCEPTED 12-15-00121-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 7/7/2015 12:50:12 PM CATHY LUSK CLERK No. 12-15-00121-CV __________________________________________________________________ FILED IN IN THE COURT OF APPEALS 12th COURT OF APPEALS TYLER, TEXAS FOR THE TWELFTH DISTRICT OF TEXAS 7/7/2015 12:50:12 PM TYLER, TEXAS CATHY S. LUSK __________________________________________________________________ Clerk GARRY L. ROLLINS AND CARLA D. ROLLINS, Appellants V. TEXAS COLLEGE AND MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL," Appellees __________________________________________________________________ Appeal from Cause No. 13-3353-A In the 7th District Court of Smith County, Texas __________________________________________________________________ APPELLANTS’ UNOPPOSED MOTION TO CORRECT CLERK’S RECORD _____________________________________________________________ TO THE HONORABLE COURT OF APPEALS: Appellants, Gary L. Rollins and Carla Rollins request that this Court issue a letter directing the trial court clerk to correct the clerk’s record and to re-file the record in proper format and would shows as follows: Appellees are Texas College and MPF Investments, LLC d/b/a “A-1 Rent All." 1. OMITTED ITEMS Texas Rule of Appellate Procedure 34.5(c)(1) provides: (c) Supplementation. (1) If a relevant item has been omitted from the clerk's record, the trial court, the appellate court, or any party may by letter direct the trial court clerk to prepare, certify, and file in the appellate court a supplement containing the omitted item. Tex. R. App. P. 34.5(c)(1). The parties have all previously made letter requests per this rule to the trial court clerk to ensure the record is complete. 2. DEFECTS IN THE RECORD Texas Rule of Appellate Procedure 34.5 (d) provides: (d) Defects or Inaccuracies. If the clerk's record is defective or inaccurate, the appellate clerk must inform the trial court clerk of the defect or inaccuracy and instruct the clerk to make the correction. Tex. R. App. P. 34.5(d). In preparing their brief, Appellants’ have determined that the vast majority of the items included in the current clerk’s record are not text-searchable, and not bookmarked at the first page. Because of the way they the documents are formatted, an OCR attempt at our end failed. This format is required by the Texas Supreme Court’s Order Directing the form of the Appellate Record, Rule 1.2 that reads: 1.2. Filing an Electronic Clerk's Record. Unless the clerk receives permission from the appellate court to file the record in paper form, the clerk must file the record electronically. When filing a clerk's record in electronic form, the trial court clerk must: (a) file each computer file in text-searchable Portable Document Format (PDF); (b) create electronic bookmarks to mark the first page of each document in the clerk's record; …. Tex. R. App. P. Appendix C. Below is an exemplar of how the bookmarks (on the left in grey) are supposed to appear. This exemplar was taken from a clerk training video provided on this Court’s website: The exemplar clearly shows each document bookmarked with a separate descriptive title. Below is a view of the clerk’s record vol. 1 in this case: By looking at the left, one can clearly see that the entire volume is marked with only one book mark, when in fact, the volume contains many separate documents. This is evidenced by the clerk’s own index for volume 1 shown below: Appellant requests this Court to order the trial court clerk to bookmark the individual documents. Because each party is required to furnish a bookmarked Appendix with its brief, this will eliminate inconsistencies in the appendices of the parties, and eliminate undue burden of document conversion on the part of the Appellants. Furthermore, although Appellant is unable to represent the problem graphically, the documents contained in the record are not text-searchable as required by the Supreme Court’s order. Appellants request this Court to order the trial court clerk to file the record (to the extent feasible) in text-searchable format. Again, this will reduce the burden on the Appellants and Appellees when creating their appendices for this Court, which must be text- searchable as well. This Courts website has a video which can be of great use by the clerk in learning how to make the record comply with the Supreme Court’s order: http://www.txcourts.gov/12thcoa/practice-before-the- court/electronic-filing/clerks-and-court-reporters.aspx It is suggested that this Court direct the clerk to comply with the video in preparing the record. WHEREFORE, Appellants pray that this Court direct the trial court clerk by order to refile the original record and the supplemental record with the requisite bookmarks in a text- searchable format as required by the Texas Supreme Court. Respectfully submitted, /s/ Ernesto D. Sigmon Ernesto D. Sigmon State Bar No. 24010397 LAW OFFICES OF ERNESTO D. SIGMON SIGMON LAW, PLLC 416 West Saulnier Street Houston, Texas 77019 214/395-1546 (Telephone) 713/485-6056 (Facsimile) esigmon@esigmon.com ATTORNEY FOR APPELLANTS, GARRY L. ROLLINS AND CARLA D. ROLLINS CERTIFICATE OF CONFERENCE I certify that I conferred with lead appellate counsel for Texas College and MPF Investments, LLC by e-mail on July 7th, 2015. Greg Smith (counsel for Texas College) is unopposed to the motion. Levon Hovnatanian (counsel for MPF) is unopposed to the motion. /s/ Ernesto D. Sigmon Ernesto D. Sigmon State Bar No. 24010397 LAW OFFICES OF ERNESTO D. SIGMON SIGMON LAW, PLLC 416 West Saulnier Street Houston, Texas 77019 214/395-1546 (Telephone) 713/485-6056 (Facsimile) esigmon@esigmon.com ATTORNEY FOR APPELLANTS, GARRY L. ROLLINS AND CARLA D. ROLLINS CERTIFICATE OF SERVICE I certify that on July 7, 2015, I served a copy of Appellants’ Unopposed Motion to Correct Clerk’s Record on the parties listed below by electronic service and that the electronic transmission was reported as complete. My e-mail address is esigmon@esigmon.com. /s/ Ernesto D. Sigmon Ernesto D. Sigmon State Bar No. 24010397 LAW OFFICES OF ERNESTO D. SIGMON WALKER SIGMON LAW 416 West Saulnier Street Houston, Texas 77019 214/395-1546 (Telephone) 713/485-6056 (Facsimile) esigmon@esigmon.com ATTORNEY FOR APPELLANTS, GARRY L. ROLLINS AND CARLA D. ROLLINS Greg Smith Texas Bar No. 18600600 Nolan D. Smith Texas Bar No. 24075632 RAMEY & FLOCK, P.C. 100 E. Ferguson, Suite 500 Tyler, Texas 75702 Telephone: 903-597-3301 Facsimile: 903-597-2413 Mr. Trey Yarbrough YARBROUGH WILCOX GUNTER, PLLC 100 East Ferguson, Suite 1015 Tyler, Texas 75702 Fax: 903.595.0191 Levon G. Hovnatanian Texas Bar No. 10059825 hovnatanian@mdjwlaw.com lonergan@mdjwlaw.com MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P. 808 Travis, 20th Floor Houston, Texas 77002 (713) 632-1700 – Telephone (713) 222-0101 – Facsimile Todd M. Lonergan Texas Bar No. 12513700 lonergan@mdjwlaw.com 808 Travis, 20th Floor Houston, Texas 77002 (713) 632-1700 – Telephone (713) 222-0101 – Facsimile Ryan K. Geddie Texas Bar No. 24055541 geddie@mdjwlaw.com MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P. Tollway Plaza One 16000 N. Dallas Parkway, Suite 800 Dallas, Texas 75248 (214) 420-5500 – Telephone (214) 420-5501 – Facsimile