Kara Lerma v. Rayleen Simpson and Pipe Movers Inc.

COURT OF APPEALS
SANDEE BRYAN MARION FOURTH COURT OF APPEALS DISTRICT KEITH E. HOTTLE
CHIEF JUSTICE CADENA-REEVES JUSTICE CENTER CLERK OF COURT
KAREN ANGELINI 300 DOLOROSA, SUITE 3200
MARIALYN BARNARD SAN ANTONIO, TEXAS 78205-3037
REBECA C. MARTINEZ WWW.TXCOURTS.GOV/4THCOA.ASPX TELEPHONE
PATRICIA O. ALVAREZ (210) 335-2635
LUZ ELENA D. CHAPA
JASON PULLIAM FACSIMILE NO.
JUSTICES (210) 335-2762

December 8, 2016

David Jenkins Andres Humberto Gonzalez Jr.
The Saenz Law Firm David Klosterboer & Associates
P.O. Box 923 9601 McAllister Fwy Ste 910
1103 E. Riley St. San Antonio, TX 78216-4681
Freer, TX 78357 * DELIVERED VIA E-MAIL *
* DELIVERED VIA E-MAIL *

Gilbert Saenz
Saenz Law Firm
P.O. Box 923
1103 East Riley
Freer, TX 78357-0923
* DELIVERED VIA E-MAIL *

RE: Court of Appeals Number: 04-16-00739-CV
Trial Court Case Number: 16-09-56471-CV
Style: Kara Lerma
v.
Pipe Movers, Inc.

Enclosed please find the order which the Honorable Court of Appeals has
issued in reference to the above styled and numbered cause.

If you should have any questions, please do not hesitate to contact me.

Very truly yours,
KEITH E. HOTTLE, CLERK

_____________________________
Rosa Gonzalez
Deputy Clerk, Ext. 53855

cc: Sonia G. Trevino (DELIVERED VIA E-MAIL)
R. David Guerrero (DELIVERED VIA E-MAIL)
 Fourth Court of Appeals
San Antonio, Texas
December 8, 2016

No. 04-16-00739-CV

Kara LERMA,
Appellant

v.

PIPE MOVERS, INC.,
Appellee

From the 79th Judicial District Court, Jim Wells County, Texas
Trial Court No. 16-09-56471-CV
Honorable Richard C. Terrell, Judge Presiding

ORDER
Appellant filed a notice of appeal from a trial court’s September 22, 2016 order granting
summary judgment in favor of appellee. The notice of appeal was filed under trial court cause
number 14-12-54007-CV, and this court assigned the appeal appellate number 04-16-00692-CV.
Subsequently, appellant filed an amended notice of appeal, but this amended notice of appeal —
although it stated it was from the same September 22, 2016 summary judgment order — was
filed under trial court cause 16-09-56471. Thus, there are two appeals currently pending, under
separate trial and appellate court numbers, from the same order.

Subsequently, appellant filed a motion to consolidate and apply fees. In this motion,
appellant explained that when the trial court signed the September 22, 2016 order, the order
included a severance. However, the order did not assign a new trial court number to the severed
action. According to appellant, the district clerk refused to assign the severed action a new cause
number pending the payment of a fee by appellee. Appellant, out of an abundance of caution,
filed his notice of appeal under the original trial court cause number — there being no severed
trial court number in which to file the notice of appeal. Appellant then filed an amended notice
of appeal once the fee in question was paid and the district clerk assigned the severed cause —
the cause from which appellant intended to appeal — trial court number 16-09-56471. In the
motion to consolidate and apply fees, appellant sought to consolidate 04-16-00692-CV and 04-
16-00739-CV and apply the filing fees paid in 04-16-00692-CV.

The clerk’s record has been filed in 04-16-00739-CV, establishing appellant’s assertions
as set forth in the motion to consolidate and apply fees. And, appellee filed a response to
appellant’s motion stating it is unopposed. However, after review, we find that consolidation is
not the proper resolution as it would allow both cause numbers to remain open and would require
a record and fees to be filed in both cause numbers. Accordingly, after review, we ORDER the
clerk of this court to administratively close appellate number 04-16-00692-CV. We ORDER the
clerk of this court to: (1) apply the filing fees paid in appellate number 04-16-00692-CV to
appellate number 04-16-00739-CV, and (2) transfer all filings in appellate number 04-16-00692-
CV to appellate number 04-16-00739-CV. We further ORDER the district clerk of Jim Wells
County to file a supplemental clerk’s record in this court on or before JANUARY 9, 2017 in
appellate number 04-16-00739-CV, which should include all pertinent filings, as required by
Rule 34.5(a) of the Texas Rules of Appellate Procedure, from trial court cause number 14-12-
54007-CV and the notice of appeal filed under trial court cause number 14-12-54007-CV.

Based on the foregoing, we DENY IN PART and GRANT IN PART appellant’s motion
to consolidate and apply fees. Based on the administrative closing of appellate number 04-16-
00692-CV, we DENY the motion to consolidate, but GRANT the portion of the motion asking
that the court apply the fees filed in appellate number 04-16-00692-CV to appellate number 04-
16-00739-CV. All future filings in this matter should be filed under 04-16-00739-CV.

We order the clerk of this court to serve a copy of this order on all counsel, the district
clerk, and the court reporter, if any.

_________________________________
Marialyn Barnard, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 8th day of December, 2016.

___________________________________
Keith E. Hottle
Clerk of Court