ACCEPTED
14-14-00410-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
5/1/2015 10:55:37 AM
CHRISTOPHER PRINE
CLERK
CAUSE NO. 14-14-00410-CV
FILED IN
14th COURT OF APPEALS
IN THE FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS
HOUSTON, TEXAS 5/1/2015 10:55:37 AM
CHRISTOPHER A. PRINE
Clerk
RESPONSE TO APPELLANT’S APRIL 20, 2015 MOTION
DOV AVNI KAMINETZKY v. DOSOHS I, LTD.
The 11th District Court, Harris County, Texas
The Honorable Mike Miller, Presiding
Cause Number 1997-40590
ERIC D. SHERER
Texas Bar No. 18237890
NICHOLAS A. PARMA
Attorney in Charge of Appeal
Texas Bar No. 24007807
JASON A. WILKES
Texas Bar No. 24093368
Wurzbach Road, 11120, Suite 300
San Antonio, Texas 78230
Tel. (210) 696-6645
Fax. (866) 305-5823
SHERER & ASSOCIATES, PLLC
COUNSEL FOR APPELLEE
DOSOHS I, LTD.
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TO THE HONORABLE COURT OF APPEALS:
Appellee, Dosohs I, Ltd. files this Response to a Motion filed by Appellant
by mail on April 10, 2014.
I.
Introduction
Appellant was ordered to file a supplemental brief no later than April 10,
2015, the latest briefing deadline after several extensions. Rather than file a brief,
Appellant has filed a motion seeking to abate this appeal.
II.
Background
The trial court decision being challenged by Appellant was issued over one
year ago, on March 31, 2014. Appellant’s brief was originally due on October 13,
2014. Since then Appellant’s deadline has been extended several times, either on
Appellant’s motion or sua sponte.
Appellant has not filed a brief in this appeal. On February 18, 2015, six
days after the briefing deadline in place at that time, Appellant filed a collection of
materials, labelled “Appellant’s 1st Supplemental Response and Objections to 2-12-
15 Deadline to File Brief.” This filing was charitably treated by the Court as a
brief, although it does not meet the requirements of Texas Rule of Appellate
Procedure 38. Subsequently, Appellant was ordered to file a supplemental brief no
later than April 10, 2015, correcting the deficiencies in the February 18 filing.
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Appellant has, yet again, chosen not to meet his obligation to file a brief in
this case. Instead, Appellant has filed an unverified motion designed solely to
delay the conclusion of this case.
III.
Argument and Authority
A. Appellant’s Motion Lacks the Required Verification
A motion in the court of appeals must be verified or be supported by other
satisfactory evidence, if it depends on facts that require proof not in the record, not
within the court’s knowledge in its official capacity, and not within the personal
knowledge of the attorney signing the motion. TEX. R. APP. P. 10.2. The motion
filed by Appellant is such a motion.
Appellant claims that his prosecution of this appeal involved searching for
records in Israel, followed by research into the records in various cases not part of
this appeal, hampered by the alleged actions of a conspiracy that sought to burden
him with coordinated legal attacks. Under Rule 10.2, these “facts” require proof
outside the record and are not within this Court’s knowledge. Further, there is no
attorney signing the motion. Appellant should not be able to delay this appeal by
simply making unsupported accusations—he should be required to support his
claims with some evidence, or make his accusations under oath, subject to penalty
of prejury.
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B. Appellant Has Shown No Cause for Abatement
Appellant complains, without cite to the record, that the trial court did not
issue findings of fact and conclusions of law. Appellant should have raised this
issue to the Court sooner, or addressed it in a brief. This appeal was opened by this
Court on May 28, 2014, yet it is only now, nearly one year later, that Appellant
seeks to abate the appeal for an error that, if it exists, was known to Appellant from
the beginning of his appeal. The only explanation for Appellant waiting as long as
he has is that he is, again, attempting to delay the resolution of this appeal.
C. Miscellaneous Issue Raised by Appellant does not Justify Abatement
Although Appellee does not understand how the complaint made by
Appellant in his motion about consolidation can justify abatement, Appellee, in an
abundance of caution, addresses this matter. Appellant appears to be complaining
about a consolidation of a case, or cases, into the trial court cause of action.
Appellant does not attach the actual consolidation order, although it might be
contained in some of the mass of documents Appellant filed in his purported
supplements to the record. However, Appellant does attach the motion to
consolidate, which clearly shows that he was one of the parties filing the motion to
consolidate. It is axiomatic that a party cannot complain on appeal of an action it
sought at trial court. Whether consolidation can justify abatement, Appellant
cannot rely on that ground, since he sought the consolidation.
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IV.
Conclusion
Appellant, once again, has ignored his briefing deadline. Rather than file a
supplemental brief on April 10, 2014, Appellant waited until April 20 to file a
motion seeking to further delay the outcome of this appeal. This Court has
repeatedly offered Appellant an opportunity to present his case, and Appellant has
just as repeatedly disregarded this Court’s forbearance. This Court should deny
Appellant’s latest motion, and dismiss this appeal for want of prosecution.
Respectfully submitted,
Sherer & Associates, PLLC
By: /s/ Nicholas A. Parma
______________________________________________________________________________________________________
ERIC D. SHERER
Texas Bar No. 18237890
NICHOLAS A. PARMA
Texas Bar No. 24007807
JASON D. WILKES
Texas Bar No. 24093368
11120 Wurzbach Road, Suite 300
San Antonio, Texas 78230
Tel. (210) 696-6645
Fax. (866) 305-5823
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Certificate of Service
I certify that on May 1, 2015, the foregoing document was served on the
Appellant by certified mail, return receipt request at the following address:
Dov A. Kaminetzky
150-B Forest Drive
Jericho, NY 11753
/s/ Nicholas A. Parma
______________________________________________________________________________________________________
Nicholas A. Parma
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