ACCEPTED 04-15-00307-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 6/3/2015 12:17:06 PM KEITH HOTTLE CLERK NO. 04-15-00307-CV IN THE COURT OF APPEALS FILED IN 4th COURT OF APPEALS FOURTH COURT OF APPEALS DISTRICTSAN ANTONIO, TEXAS SAN ANTONIO, TEXAS 06/3/2015 12:17:06 PM KEITH E. HOTTLE *** Clerk

AUTOZONE, INC., AND AUTOZONERS, L.L.C., Appellants V. MARIO FLORES, Appellee *** RESPONSE TO COURT ORDER REGARDING PAYMENT FOR CLERK’S RECORD *** BRETT REYNOLDS & ASSOCIATES, P.C. THE LAW OFFICE OF Brett T. Reynolds JACQUELINE M. STROH, P.C.

State Bar No. 16795500 Jacqueline M. Stroh [email protected] State Bar No. 00791747 P. Brook Swilley [email protected] State Bar No. 24041997 10101 Reunion Place, Suite 600 [email protected] San Antonio, Texas 78216 1250 N.E. Loop 410, Suite 420 (210) 477-7416 San Antonio, Texas 78209 (210) 477-7466 (telecopier) (210) 805-9799 (210) 805-9654 (telecopier)

ATTORNEYS FOR APPELLANTS TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: On May 29, 2015, the Court issued an Order requiring Appellants AutoZone, Inc. and AutoZoners, L.L.C. to provide written proof to the Court that they have paid the clerk’s fee for preparation of the clerk’s record or that they have made satisfactory payment arrangements with the clerk for its preparation. In response, the AutoZone Appellants show unto the Court the following.

I. Appellants Filed a Request for Preparation of the Record Requesting that the Clerk Instruct Them When Payment Was Due On May 15, 2015, the AutoZone Appellants filed their Notice of Appeal with the Starr County District Clerk and subsequently filed a copy of that notice with this Court on May 18, 2015.1 Also on May 15, 2015, the AutoZone Appellants filed a Request for Preparation of the Clerk’s Record with the Starr County District Clerk. (See Defendants’ Request for Preparation of Clerk’s Record, a copy of which is attached hereto as Exhibit “A”). Appellants directed the request to Brendaly Guerrero, the individual identified by Starr County District Clerk staff to be the person in charge of preparing appellate records for civil cases.

In the body of the record request, Appellants specifically recited the following:

The AutoZone Appellants subsequently filed an Amended Notice of Appeal on May 18, 2015 to add a missing attachment to the original notice of appeal. They filed a copy of that Amended Notice of Appeal with the Fourth Court on the same date. (See Exhibit “A”).

II. Once Informed of the Amount Due, Appellants Forwarded Payment; and the District Clerk Has Acknowledged Its Receipt On May 21, 2015, the Thursday before the Memorial Day Holiday weekend, Ms. Guerrero forwarded a letter to litigation counsel requesting payment for the clerk’s record in the amount of $400.00. (See Invoice from the Starr County District Clerk, a copy of which is attached hereto as Exhibit “B”) On May 26, 2015, the day following the Memorial Day Holiday weekend, litigation counsel issued a check to the Starr County District Clerk in the amount of $400.00 for full and complete payment of the fee for preparation of the clerk’s record. (See Stub for Check Issued to Starr County District Clerk, a copy of which is attached hereto as Exhibit “C”) After having been informed that the district clerk did not receive the initial payment, litigation counsel issued a second check in the amount of $400.00 for full and complete payment of the fee for preparation of the clerk’s record. (See Stub for Second Check Issued to Starr County District Clerk, a copy of which is attached hereto as Exhibit “D”) On June 2, 2015, the Starr County District Clerk confirmed receipt of payment in full for preparation of the clerk’s record and forwarded to litigation counsel a receipt for full payment. (See Receipt from the Starr County District Clerk, a copy of which is attached hereto as Exhibit “E”) As a result, the AutoZone Appellants have provided this Court with the necessary proof demonstrating payment of the fee for preparation and filing of the clerk’s record with the Court in this appeal. (See also Affidavit of P. Brook Swilley, attached hereto as Exhibit “F”) The Court should, therefore, retain this appeal on the Court’s docket.

PRAYER WHEREFORE, PREMISES CONSIDERED, Appellants AutoZone, Inc. and AutoZoners, L.L.C. respectfully request that the Court acknowledgment their payment of the fee for preparation of the clerk’s record and retain this appeal on the Court’s docket. Appellants also request such other and further relief to which they are entitled.

Respectfully submitted, BRETT REYNOLDS & ASSOCIATES, P.C. THE LAW OFFICE OF Brett T. Reynolds JACQUELINE M. STROH, P.C.

State Bar No. 16795500 Jacqueline M. Stroh [email protected] State Bar No. 00791747 P. Brook Swilley [email protected] State Bar No. 24041997 10101 Reunion Place, Suite 600 [email protected] San Antonio, Texas 78216 1250 N.E. Loop 410, Suite 420 (210) 477-7416 San Antonio, Texas 78209 (210) 477-7466 (telecopier) (210) 805-9799 (210) 805-9654 (telecopier) By: /s/ Jacqueline M. Stroh Jacqueline M. Stroh ATTORNEYS FOR APPELLANTS AUTOZONE, INC. AND AUTOZONERS, L.L.C. CERTIFICATE OF SERVICE I certify that a true copy of the foregoing Response was on this 3rd day of June, 2015, served by in accordance with the Texas Rules of Appellate Procedure on the following counsel of record: Jaime M. Lynn [email protected] Kiara Martinez [email protected] THE CARLSON LAW FIRM, P.C.

11606 North Interstate Highway 35 Austin, Texas 78753 -and- West Jasper Road Killeen, Texas 76542 Attorneys for Appellee

/s/ Jacqueline M. Stroh Jacqueline M. Stroh

Filed: 5/15/2015 11:43:13 AM Eloy R. Garcia, District Clerk Starr County, Texas Brendaly Guerrero 2. Defendants' Original Answer, filed on February 10, 2015; 3. Defendants' Motion to Compel Arbitration, filed on March 12, 2015; 4. Notice of Hearing on Defendants' Motion to Compel Arbitration, signed on March 18, 2015; 5. Plaintiffs Response to Defendants' Motion to Compel Arbitration, filed on March 30, 2015; 6. Defendants' Reply to Plaintiffs Response to Motion to Compel Arbitration, filed on April 10, 2015; 7. Plaintiffs Supplemental Evidence for the Motion to Compel Arbitration Hearing April 13, 2015, filed on April 16, 2015; 8. Defendants' Objection to and Motion to Strike Plaintiffs Supplemental Evidence Submitted in Response to Defendants' Motion to Compel Arbitration, filed on April 16, 2015; 9. Order denying "Defendants' Motion to Compel/Enforce Arbitration," signed on April 27, 2015 ; 10. Defendants' Notice of Appeal, filed May 15, 2015; 11. Correspondence to Mr. Ramiro Hernandez, Official Court Reporter for the 229th Judicial District Court, requesting preparation of the reporter's record, filed May 15, 2015; 12. This Request for Preparation of Clerk's Record, filed May 15, 2015.

The Defendants hereby make satisfactory arrangements to pay for the record pursuant to TEX. R. APP. P. 35.3(a)(2) by offering to pay for the record's preparation, including payment of a deposit prior to preparation, immediately upon notification and request by the Starr County District Clerk's office. Defendants hereby reserve their right to request any additional portion pursuant to TEX. R. APP. P. 34.S(c).

The record is due to be filed with the Fourth Court of Appeals, sitting in San Antonio, no later than May 27, 2015. See TEX. R. APP. P. 35.l(b); see also TEX. R. APP. P. 4.l(a). Should the district clerk need any assistance with this Request for Preparation of the Clerk's Record, and/or if any of the items requested above cannot be located, the Defendants request that the district clerk contact them through their counsel listed below pursuant to TEX. R. APP. P. 34.S(h).

Respectfully submitted, Brett T. Reynolds State Bar No. 16795500 [email protected] P. Brook Swilley State Bar No. 24041997 [email protected] BREIT REYNOLDS & ASSOCIATES, P .C.

1250 N.E. Loop 410, Suite 420 San Antonio, Texas 78209 (210) 805-9799 (210) 805-9654 (telecopier) By: Isl P. Brook Swilley P. Brook Swilley ATTORNEYS FOR DEFENDANTS, AUTOZONE, INC. AND AUTOZONERS, L.L.C. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing request was served on the following counsel of record in accordance with the Texas Rules of Civil Procedure on this, the 15th day of May, 2015: Jaime M. Lynn [email protected] Kiara Martinez [email protected]

THE CARLSON LAW FIRM, P.C.

400 West Jasper Road Killeen, Texas 76542 -and- 11606 North Interstate Highway 35 Austin, Texas 78753 Attorneys for Plaint(ff

/s/ P. Brook Swilley P. Brook Swilley

From:STARR CO.DIST.CLERK 956+487+8493 05/21/2015 10 :55 #199 P.001/001

BRENDALY GUERRERO CHIEF DEPUTY • ELOY R. GARCIA DISTRICT CLERK .

STARR COUNTY COURTHOUSE ROOM304 PHONE NUMBERS (956) 716-4800 EXT. 8482 Fax: (95B) 4117-8493 RIO GRANDE CITY, TEXAS 785B2 Email; dtslrlclclerkOco.starr.tx.us May Zl, 2015 Brett Reynolds & Associates PC Attn: Jean 1250 N.E. Loop 410, Suite 420 San Antonio, Texas 78209 Re: Cause No.: DC-15-6 Mario Flores v. Autozone, Inc. et al.

Dear Ms. Jean: This letter serves as an Invoice for the above-mentioned cause number, for preparation of the clerk's record. A total amount of $400.00 is due, immediate payment is required for us to foiward appeal to the Fourth Court of Appeals.

If you should have any questions, please feel free to contact me. BRETI' REYNOLDS & ASSOCIA TI!S, P.C. 6973

5/26/2015 Eloy Garcia, Starr County District Clerk $400.00 Cause No. DC: 15-6; Mario Flores vs. AutoZoners. LLC and AutoZone, Inc. Preparation and filing for clerk's record to Fourth COA BRETT REYNOLDS oi ASSOCIATES, P.C.

6974 5/29/ 2015 E1oy Garcia, Starr County District Clerk $400.00 Preparation of clerks record for 4th COA Cause No. DC: 15-6 Mario Flores vs. AutoZone, Inc. From:STARR CO.DIST . CLERK 956+487+8493 0610212015 15:44 #271 P.002/002

BRENDALY GUl!RFl~AO CHIEF OEPIJTY • ELOY R, GARCIA DISTRICT CLEAK STARR COUNTY COU~HOUSE ROOM304 PHONE NUMBERS (ffe) 71S·4800 EXT. 8482 Fax: (856, 487·8493 RIO GRANDE OITY1 TEXAS 78682 Emah: dlltrJctcteri<Oco.starT.bc. ua

June 2, 2015 Brett Reynolds & Associates P.c.

P. Brook Swilley 1250 N.E. Loop 410, Suite 420 San Antonio, Texas 78209 Ra: DCP15-6 Mario flores Vs. Autozone, Inc. Autozoners L.L.C. d/b/a A\ltozone #3115

Dear Brook: This letter is to inform you that we received full p&yment of $4-00.00, for preparation of Clerk's record. We will start preparing the clerk's record and submit it t.o the 4tll Court of Appeals.

If you should have any questions, please feel free to contact this office.

Sincerely, STATE OF TEXAS § § COUNTY OF BEXAR §

Before me, the undersigned notary public, on this day personally appeared P. Brook Swilley, known to me to be the person whose name is subscribed below, who on her oath stated and deposed as follows:

My name is P. Brook Swilley. I am over 18 years of age and am competent to make this affidavit. I am a senior associate with the firm of Brett Reynolds & Associates, P.C. and an attorney for Appellants AutoZone, Inc. and AutoZoners, L.L.C., who are Appellants in Cause No. 04-15-00307-CV pending in the Fourth Court of Appeals, sitting in San Antonio, Texas. I have personal knowledge of the facts stated herein, all of which are true and correct.

I am familiar with the manner in which the records of Brett Reynolds & Associates, P.C. are created and maintained by virtue of my duties and responsibilities. Attached to the Response to Court Order Regarding Payment for Clerk's Record are two check stubs reflecting payment issued to Eloy Garcia, Starr County District Clerk, for preparation and filing of the clerk's record in this matter.

The check stubs were prepared by the firm's office manager at the time that each check was issued as part of the regular practice of, and are kept in the course of the regularly conducted business activity of, Brett Reynolds & Associates, P.C. The copies attached to the response are true and correct copies of the original check stubs. The firm mailed payment as reflected on the check stubs for preparation of the clerk's record in this appeal to the Starr County District Clerk on May 26, 2015 and May 29, 2015 respectively.

Also attached to the Response are two items of correspondence from Brendaly Guerrero of the Starr County District Clerk, which were faxed to the firm of Brett Reynolds & Associates, P.C. The copies of those two items of correspondence are true and correct copies of the letters the firm received via facsimile from the office of the Starr County District Clerk.

Affidavit of P. Brook Swi11ey June 3, 2015

Further, Affiant sayeth not.

P. Brook Swilley State Bar No. 240

SUBSCRIBED TO AND SWORN to before me on this 3rd day of June, 2015.