Tan Duc USA v. Jimmy Tran ( 2015 )

ACCEPTED
01-14-00539-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
9/24/2015 4:50:55 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00539-CV
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
IN THE COURT OF APPEALS 9/24/2015 4:50:55 PM
FOR THE FIRST SUPREME JUDICIAL DISTRICTCHRISTOPHER
OF TEXAS A. PRINE
Clerk
HOUSTON, TEXAS
HOANG-YEN THI DANG, and
TAN DUC CONSTRUCTION LIMITED COMPANY,
Appellants
v.
JIMMY TRAN,
Appellee and Conditional Cross-Appellant
TRAN’S MOTION TO EXTEND and BIFURCATE HIS DEADLINES
FOR FILING BRIEFS AS APPELLEE and
as CONDITIONAL CROSS-APPELLANT
TO THE HONORABLE FIRST COURT OF APPEALS:
Tran (Appellee, and Conditional Cross-Appellant) was assigned the
deadline of September 24 to file his Brief (as Appellee and Conditional Cross-
Appellant as to Appellant and Conditional Cross-Appellee Dang) by a prior order
of this Court. (That Tran would file a single brief as to Dang, both as Appellee
and as Conditional Cross-Appellant, and the lack of objection to the conditionality
of Tran’s cross-appeal as to Dang, were subsumed by an agreed motion made and
accepted earlier in this appeal.)(The conditionality of Tran’s Cross-Appeal is that
Tran does not wish to seek appellate relief as to Dang, his judgment debtor, unless
this Court grants relief to Dang. In common speech, Tran will choose his bird in
the hand, if it stays there.)
This motion comes to pass because none of the Jury Questions and Jury
Instructions Tran submitted and the Trial Court rejected are in the Clerk’s Record
on Appeal or Clerk’s Supplemental Record on Appeal, nor are they in the “JIMS”
electronic case file available online to Tran through the District Clerk’s website,
nor (Tran started asking some weeks ago) has the Chief Clerk of the trial court yet
been able to locate the paper originals of those proposed-but-rejected Jury
Questions and Instructions. The trial court clerk reports to Tran that she is looking
for the paper originals, and the court staff have reported to Tran they lately have
requested the actual paper file to be “pulled” from the Clerk’s storage facility in
order that they may search for the missing Tran’s proposed-but-rejected Jury
Questions and Instructions. Tran has assiduously pursued the trail of these
necessary documents since the omission became manifest. Tran is unable to
prepare and file his brief as a Conditional Cross-Appellant without reference to the
Jury Questions and Jury Instructions he submitted that the Trial Court refused. It
is unknown to Tran when the Chief Clerk of the Trial Court will conclude her
inquiry and report either that the papers are utterly missing or that they have been
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located and scanned into the clerk’s electronic record and available for
supplementation to the appellate record in this Court.
However, though his present deadline is for filing a single Brief as Appellee
and as Conditional Cross-Appellant, Tran does not require the missing proposed-
but-rejected jury questions and instructions in order to prepare the portion of his
brief as an Appellee responsive to the Appellant Dang’s brief, and so Tran
proposes that despite the earlier agreed motion to file a single brief (as Appellee
and Conditional Cross-Appellant) as to Dang that Tran now, to accommodate the
uncertain time needed to complete the trial court clerk’s continuing search for the
missing papers, bifurcate his briefing as to Dang into one brief to be filed as
Appellee as to Dang, and a later brief to be filed as Conditional Cross-Appellant as
to Dang.
Tran does not request adjustment of the briefing deadline as to Tan Duc,
which deadline was set by this Court’s prior order.
Tran moves for the following relief:
A. Permission to bifurcate his briefing as to Dang into an Appellee’s
Brief responding to Appellant Dang’s brief, and a Conditional Cross-
Appellant’s Brief as to Dang.
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B. An extension of Three (3) Weeks from the present deadline to file his
Appellee’s Brief as to Dang’s Appellant’s Brief.
C. An extension of One (1) Month from the present deadline to file his
Conditional Cross-Appellant’s Brief as to Dang, understanding that
the trial court clerk’s office’s retrieval of its own paper files and
search for the missing proposed-but-rejected jury questions and
instructions are outside Tran’s control, though his requests are direct
and assiduous and continuing.
Respectfully submitted,
/S/ Matt Muller
Matthew S. Muller
Texas Bar No. 14648450
1445 North Loop West, Suite 760
Houston, Texas 77008
Tel. (713)227-1888
Fax. (713)227-1881
Attorney for Tran
Certificate of Conference
By earlier agreement with Dang’s current appellant counsel, ordinary and
reasonable requests for deadline relief are not opposed. This motion does not
affect Tan Duc and its counsel has not been contacted.
/S/
Matthew Muller
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Certificate of Service
I will cause the e-filing system to serve a true copy of this instrument on all
counsel this 24th day of September, 2015.
/S/
Matthew Muller
C:\Users\Matt\Dropbox\TRAN Appellate\motion bifurcate.wpd
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