Jay Cohen v. Tours Partners, Ltd. and Preston Realty Corporation

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

FILED IN
14th COURT OF APPEALS
IN THE FOURTEENTH DISTRICT COURT OF APPEALS
HOUSTON, TEXAS
AT HOUSTON, TEXAS 9/9/2015 5:51:38 PM
CHRISTOPHER A. PRINE
Clerk
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.
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

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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

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 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

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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, §

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Defendants § 269th JUDICIAL DISTRICT

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REQUEST FOR SUPPLEMENTAL CLERK’S RECORD

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TO THE HONORABLE COURT:

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COMES NOW Plaintiff Jay Cohen pursuant to Rule 34.5 of the Texas Rule of Appellate

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Procedure to respectfully request that the clerk prepare a supplement to the record in the appeal

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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.
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Mr. Cohen requests that the following be included in the supplemental record:
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Image No. 65211494 Plaintiff Jay Cohens Notice of Appeal - filed on 04/28/2015; 2 pages
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Image No. 64452951 Plaintiff's Motion for New Trial - filed on 02/27/2015; 8 pages
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Image No. 64023492 ORDER SIGNED GRANTING ENTRY OF TEMPORARY ORDERS -
filed on 01/28/2015; 5 pages
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Image No. 63171721 Plaintiff Jay Cohen's motion for default judgment against defendant Preston
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Realty Corporation - filed on 11/13/2014; 5 pages
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Image No. 63171722 Exhibit A - filed on 11/13/2014; 2 pages
Image No. 63171723 Exhibit B - filed on 11/13/2014; 2 pages
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Image No. 63171724 Exhibit C - filed on 11/13/2014; 3 pages
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Image No. 63171725 Exhibit C-1 - filed on 11/13/2014; 3 pages
Image No. 63171726 Exhibit C-2 - filed on 11/13/2014; 4 pages
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Image No. 63093159 Tour Partner's motion to strike and special exceptions - filed on
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11/07/2014; 4 pages
Image No. 63171651 Proposed Order - filed on 11/13/2014; 1 page
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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

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Image No. 63030197 Exhibit A-15 - filed on 11/03/2014; 3 pages

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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

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Image No. 63030203 Exhibit A-20 - filed on 11/03/2014; 32 pages
Image No. 63030204 Exhibit A-21 - filed on 11/03/2014; 5 pages

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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

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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
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Image No. 63030209 Exhibit A-26 - filed on 11/03/2014; 7 pages
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Image No. 63030210 Exhibit A-27 - filed on 11/03/2014; 7 pages
Image No. 63030211 Exhibit A-28 - filed on 11/03/2014; 6 pages
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Image No. 63030183 Exhibit A-3 - filed on 11/03/2014; 2 pages
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Image No. 63037683 EXHIBIT A-4 - filed on 11/03/2014; 3 pages
Image No. 63030185 Exhibit A-5 - filed on 11/03/2014; 4 pages
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Image No. 63030186 Exhibit A-6 - filed on 11/03/2014; 5 pages
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Image No. 63030187 Exhibit A-7 - filed on 11/03/2014; 4 pages
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
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Image No. 63030191 Exhibit A-9b - filed on 11/03/2014; 6 pages
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

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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

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Image No. 63030223 Exhibit A-5 - filed on 11/03/2014; 4 pages
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
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Image No. 63030250 Exhibit B - filed on 11/03/2014; 2 pages
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
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Image No. 63030253 Exhibit C - filed on 11/03/2014; 145 pages
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
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10/22/2014; 4 pages
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
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Judgment - filed on 10/17/2014; 36 pages
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

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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

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Objections and Response in Opposition to defendant Tour Partners, Ltd.'s Motion to Consolidate
- 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
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review of documentation or instrument purporting to create a lien, claim or interest in real
property - filed on 07/10/2014; 8 pages
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Image No. 61528242 Exhibit A - filed on 07/10/2014; 6 pages
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Image No. 61528243 Exhibit B - filed on 07/10/2014; 9 pages
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
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consolidate - filed on 07/10/2014; 2 pages
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
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Image No. 60738991 Exhibit 1 - filed on 05/09/2014; 1 pages
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
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State Bar No. 24037050
2 Riverway, 15th Floor
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Houston, Texas 77056
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(713) 659-0000 Telephone
(832) 201-8485 Facsimile
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george@twomeymay.com
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Attorneys for Plaintiff Jay Cohen
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 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
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)
personal delivery

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mail
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