Don Prochaska v. Matthew Barnes, Montcalm Co., LLC, and Schain Leifer Guralnick

ACCEPTED
01-15-01044-CV
FIRST COURT OF APPEALS
Appellate Docket Number: 01-15-01044-CV HOUSTON, TEXAS
12/23/2015 2:00:56 PM
CHRISTOPHER PRINE
Appellate Case Style: Don Prochaska CLERK

Vs.
Matthew Barnes, Montcalm Co., LLC and Schain Leifer Guralnick

Companion Case No.:
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
12/23/2015 2:00:56 PM
Amended/corrected statement: DOCKETING STATEMENT (Civil) CHRISTOPHER A. PRINE
Clerk
Appellate Court:1st Court of Appeals
(to be filed in the court of appeals upon perfection of appeal under TRAP 32)

I. Appellant II. Appellant Attorney(s)
Person Organization (choose one) Lead Attorney
First Name: Anthony
First Name: Don Middle Name:
Middle Name: Last Name: Vitullo
Last Name: Prochaska Suffix:
Suffix: Law Firm Name: Fee Smith Sharp & Vitullo, LLP

Pro Se: Address 1: 13155 Noel Road
Address 2: Suite 1000
City: Dallas
State: Texas Zip+4: 75240
Telephone: (972) 934-9200 ext.
Fax:
Email: lvitullo@feesmith.com
SBN: 20594400

III. Appellee IV. Appellee Attorney(s)
Person Organization (choose one) Lead Attorney
First Name: Gregg
First Name: Matthew Middle Name:
Middle Name: Last Name: Weinberg
Last Name: Barnes Suffix:
Suffix: Law Firm Name: Roberts Markel Weinberg Butler Hailey PC
Pro Se: Address 1: 2800 Post Oak Boulevard
Address 2: 57th Floor
City: Houston
State: Texas Zip+4: 77056
Telephone: (713) 840-1666 ext.
Fax:
Email: gweinberg@rmwbhlaw.com
SBN: 21084150
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III. Appellee IV. Appellee Attorney(s)
Person Organization (choose one) Lead Attorney
Organization Name: Montcalm Co. LLC First Name: Greg
First Name: Middle Name: S.
Middle Name: Last Name: Weinberg
Last Name: Suffix:
Suffix: Law Firm Name: Roberts Markel Weinberg Butler Hailey, P.C.
Pro Se: Address 1: 2800 Post Oak Blvd., 57th Floor
Address 2:
City: Houston
State: Texas Zip+4: 77056
Telephone: 713-840-1666 ext.
Fax: 713-840-9404
Email: gweinberg@rmwbhlaw.com
SBN: 21084150

III. Appellee IV. Appellee Attorney(s)
Person Organization (choose one) Lead Attorney
Organization Name: Schain Leifer Guralnick First Name: Clinton
First Name: Middle Name: J.
Middle Name: Last Name: Echols
Last Name: Suffix:
Suffix: Law Firm Name: Rymer, Moore, Jackson & Echols, P.C.
Pro Se: Address 1: 2801 Post Oak Blvd., Suite 250
Address 2:
City: Houston
State: Texas Zip+4: 77056
Telephone: 713-626-1550 ext.
Fax: 713-626-1558
Email: cechols@rmjelaw.com
SBN: 00790625

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V. Perfection Of Appeal And Jurisdiction

Nature of Case (Subject matter or type of case): Professional Malpractice

Date order or judgment signed: November 3, 2015 Type of judgment: Dismissal
Date notice of appeal filed in trial court: December 7, 2015
If mailed to the trial court clerk, also give the date mailed:
Interlocutory appeal of appealable order: Yes No
If yes, please specify statutory or other basis on which interlocutory order is appealable (See TRAP 28):

Accelerated appeal (See TRAP 28): Yes No
If yes, please specify statutory or other basis on which appeal is accelerated:

Parental Termination or Child Protection? (See TRAP 28.4): Yes ■ No

Permissive? (See TRAP 28.3): Yes No
If yes, please specify statutory or other basis for such status:

Agreed? (See TRAP 28.2): Yes No
If yes, please specify statutory or other basis for such status:

Appeal should receive precedence, preference, or priority under statute or rule: Yes No
If yes, please specify statutory or other basis for such status:

Does this case involve an amount under $100,000? Yes No
Judgment or order disposes of all parties and issues: Yes No
Appeal from final judgment: Yes No
Does the appeal involve the constitutionality or the validity of a statute, rule, or ordinance? Yes No

VI. Actions Extending Time To Perfect Appeal

Motion for New Trial: Yes No If yes, date filed:
Motion to Modify Judgment: Yes No If yes, date filed:
Request for Findings of Fact Yes No If yes, date filed:
and Conclusions of Law:
Yes No If yes, date filed:
Motion to Reinstate:
Yes No If yes, date filed:
Motion under TRCP 306a:
Other: Yes No
If other, please specify: Motion to Extend Time

VII. Indigency Of Party: (Attach file-stamped copy of affidavit, and extension motion if filed.)

Affidavit filed in trial court: Yes No If yes, date filed:

Contest filed in trial court: Yes No If yes, date filed:

Date ruling on contest due:

Ruling on contest: Sustained Overruled Date of ruling:

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VIII. Bankruptcy

Has any party to the court's judgment filed for protection in bankruptcy which might affect this appeal? Yes No
If yes, please attach a copy of the petition.

Date bankruptcy filed: Bankruptcy Case Number:

IX. Trial Court And Record

Court: 334th Judicial District Court Clerk's Record:
County: Harris County, Texas Trial Court Clerk: District County
Trial Court Docket Number (Cause No.): 2013-35800 Was clerk's record requested? Yes No
If yes, date requested: December 23, 2015
Trial Judge (who tried or disposed of case): If no, date it will be requested:
First Name: Grant Were payment arrangements made with clerk?
Middle Name: Yes No Indigent
Last Name: Dorfman
(Note: No request required under TRAP 34.5(a),(b))
Suffix:
Address 1: 201 Caroline, 14th Floor
Address 2 :
City: Houston
State: Texas Zip + 4: 77002
Telephone: (713) 368-6500 ext.
Fax:
Email:

Reporter's or Recorder's Record:

Is there a reporter's record? Yes No
Was reporter's record requested? Yes No

Was there a reporter's record electronically recorded? Yes No
If yes, date requested: December 15, 2015

If no, date it will be requested:
Were payment arrangements made with the court reporter/court recorder? Yes No Indigent

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 Court Reporter Court Recorder
Official Substitute

First Name:
Middle Name:
Last Name:
Suffix:
Address 1:
Address 2:
City:
State: Texas Zip + 4:
Telephone: ext.
Fax:
Email:

X. Supersedeas Bond
Supersedeas bond filed: Yes No If yes, date filed:

Will file: Yes No

XI. Extraordinary Relief

Will you request extraordinary relief (e.g. temporary or ancillary relief) from this Court? Yes No
If yes, briefly state the basis for your request:

XII. Alternative Dispute Resolution/Mediation (Complete section if filing in the 1st, 2nd, 4th, 5th, 6th, 8th, 9th, 10th, 11th, 12th, 13th,
or 14th Court of Appeal)
Should this appeal be referred to mediation?
Yes No

If no, please specify:Dismissed appellees not subject to jurisdiction; cost of mediation would significantly exceed any settlement value
Has the case been through an ADR procedure? Yes No
If yes, who was the mediator?
What type of ADR procedure?
At what stage did the case go through ADR? Pre-Trial Post-Trial Other

If other, please specify:

Type of case?
Give a brief description of the issue to be raised on appeal, the relief sought, and the applicable standard for review, if known (without
prejudice to the right to raise additional issues or request additional relief):
Trial court correctly found, after significant discovery, that appellees not subject to personal jurisdiction in Texas. Appellee Schain Leifer Guralnick is
aware of no valid basis for appeal.

How was the case disposed of? Dismissal
Summary of relief granted, including amount of money judgment, and if any, damages awarded. Dismissal w/o prejudice to refile
elsewhere
If money judgment, what was the amount? Actual damages:
Punitive (or similar) damages:

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Attorney's fees (trial):
Attorney's fees (appellate):
Other:
If other, please specify:

Will you challenge this Court's jurisdiction? Yes No
Does judgment have language that one or more parties "take nothing"? Yes No
Does judgment have a Mother Hubbard clause? Yes No
Other basis for finality? Special Appearance Granted
Rate the complexity of the case (use 1 for least and 5 for most complex): 1 2 3 4 5
Please make my answer to the preceding questions known to other parties in this case. Yes No
Can the parties agree on an appellate mediator? Yes No
If yes, please give name, address, telephone, fax and email address:
Name Address Telephone Fax Email

Languages other than English in which the mediator should be proficient:
Name of person filing out mediation section of docketing statement:

XIII. Related Matters
List any pending or past related appeals before this or any other Texas appellate court by court, docket number, and style.

Docket Number: Trial Court:

Style:

Vs.

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XIV. Pro Bono Program: (Complete section if filing in the 1st, 3rd, 5th, or 14th Courts of Appeals)
The Courts of Appeals listed above, in conjunction with the State Bar of Texas Appellate Section Pro Bono Committee and local Bar
Associations, are conducting a program to place a limited number of civil appeals with appellate counsel who will represent the appellant in
the appeal before this Court.

The Pro Bono Committee is solely responsible for screening and selecting the civil cases for inclusion in the Program based upon a number of
discretionary criteria, including the financial means of the appellant or appellee. If a case is selected by the Committee, and can be matched
with appellate counsel, that counsel will take over representation of the appellant or appellee without charging legal fees. More information
regarding this program can be found in the Pro Bono Program Pamphlet available in paper form at the Clerk's Office or on the Internet at
www.tex-app.org. If your case is selected and matched with a volunteer lawyer, you will receive a letter from the Pro Bono Committee within
thirty (30) to forty-five (45) days after submitting this Docketing Statement.
Note: there is no guarantee that if you submit your case for possible inclusion in the Pro Bono Program, the Pro Bono Committee will select
your case and that pro bono counsel can be found to represent you. Accordingly, you should not forego seeking other counsel to represent you
in this proceeding. By signing your name below, you are authorizing the Pro Bono committee to transmit publicly available facts and
information about your case, including parties and background, through selected Internet sites and Listserv to its pool of volunteer appellate
attorneys.
Do you want this case to be considered for inclusion in the Pro Bono Program? Yes No

Do you authorize the Pro Bono Committee to contact your trial counsel of record in this matter to answer questions the committee may have
regarding the appeal? Yes No

Please note that any such conversations would be maintained as confidential by the Pro Bono Committee and the information used solely for
the purposes of considering the case for inclusion in the Pro Bono Program.

If you have not previously filed an affidavit of Indigency and attached a file-stamped copy of that affidavit, does your income exceed 200% of
the U.S. Department of Health and Human Services Federal Poverty Guidelines? Yes No

These guidelines can be found in the Pro Bono Program Pamphlet as well as on the internet at http://aspe.hhs.gov/poverty/06poverty.shtml.

Are you willing to disclose your financial circumstances to the Pro Bono Committee? Yes No
If yes, please attach an Affidavit of Indigency completed and executed by the appellant or appellee. Sample forms may be found in the Clerk's
Office or on the internet at http://www.tex-app.org. Your participation in the Pro Bono Program may be conditioned upon your execution of
an affidavit under oath as to your financial circumstances.

Give a brief description of the issues to be raised on appeal, the relief sought, and the applicable standard of review, if known (without
prejudice to the right to raise additional issues or request additional relief; use a separate attachment, if necessary).

XV. Signature

Signature of counsel (or pro se party) Date: December 23, 2015

Printed Name: Clinton J. Echols State Bar No.: 00790625

Electronic Signature: Clinton J. Echols
(Optional)

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XVI. Certificate of Service

The undersigned counsel certifies that this docketing statement has been served on the following lead counsel for all parties to the trial
court's order or judgment as follows on December 23, 2015 .

Signature of counsel (or pro se party) Electronic Signature: Clinton J. Echols
(Optional)

State Bar No.: 00790625
Person Served
Certificate of Service Requirements (TRAP 9.5(e)): A certificate of service must be signed by the person who made the service and must
state:
(1) the date and manner of service;
(2) the name and address of each person served, and
(3) if the person served is a party's attorney, the name of the party represented by that attorney

Please enter the following for each person served:

Date Served: December 23, 2015
Manner Served: Email

First Name: Anthony

Middle Name:
Last Name: Vitullo
Suffix:
Law Firm Name: Fee Smith Sharp & Vitullo, LLP
Address 1: 13155 Noel Road
Address 2: Suite 1000

City: Dallas
State Texas Zip+4: 75240
Telephone: (972) 934-9200 ext.
Fax:
Email: lvitullo@feesmith.com

If Attorney, Representing Party's Name: Appellant Don Prochaska
Please enter the following for each person served:

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Date Served: December 23, 2015
Manner Served: Email

First Name: Gregg

Middle Name:
Last Name: Weinberg
Suffix:
Law Firm Name: Roberts Markel Weinberg Butler Hailey PC
Address 1: 2800 Post Oak Boulevard
Address 2: 57th Floor

City: Houston
State Texas Zip+4: 77056
Telephone: (713) 840-1666 ext.
Fax:
Email: gweinberg@rmwbhlaw.com

If Attorney, Representing Party's Name: Appellees Matthew Barnes & Montcalm Co, L

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