Microsoft Corporation// Michael Mercieca v. Michael Mercieca// Cross-Appellee, Microsoft Corporation ( 2015 )

ACCEPTED 14-15-00024-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 5/7/2015 12:33:17 PM CHRISTOPHER PRINE CLERK No. 14-15-00024-CV FILED IN In the Fourteenth Court of Appeals 14th COURT OF APPEALS HOUSTON, TEXAS Houston, Texas 5/7/2015 12:33:17 PM CHRISTOPHER A. PRINE Clerk MICROSOFT CORPORATION, Appellant/Cross-Appellee V. MICHAEL MERCIECA, Appellee/Cross-Appellant APPEAL FROM CAUSE NO. D-1-GN-11-001030 353RD JUDICIAL DISTRICT COURT OF TRAVIS COUNTY, TEXAS HON. TIM SULAK PRESIDING AMENDED MOTION FOR EXTENSION OF TIME TO FILE APPELLEE/CROSS-APPELLANT’S BRIEF BASED ON EXCEPTIONAL CIRCUMSTANCES TO THE HONORABLE FOURTEENTH COURT OF APPEALS: Appellee/Cross-Appellant Michael Mercieca files this amended motion requesting a 21-day extension of time for filing his opening brief in the above- referenced appeal. Mercieca respectfully shows: 1. Appellant/Cross-Appellee Microsoft Corporation filed its opening brief on February 23, 2015. Under the Court’s March 12, 2015 order granting the parties’ Agreed, Joint Motion to Adopt Briefing Schedule and for Leave to Assert Cross-Points in Brief for Appellee (“Joint Motion”), Mercieca’s initial brief was initially due on March 25, 2015. Mercieca received a subsequent 30-day extension of that deadline until April 24, 2015. 2. On April 23, 2015, Mercieca filed a motion for extension of time based on exceptional circumstances and asked for the deadline to be re-set until Friday, May 8, 2015. The Court has not yet ruled on this motion, which is hereby amended to seek a new deadline of Friday, May 15, 2015. 3. As stated in the original motion, the appellate record in this case is immense. The clerk’s record and supplemental clerk’s record combined are more than 1,950 pages. The reporter’s record and exhibits total more than 8,800 pages and also include more than thirty audio files. The undersigned was not involved before the post-verdict stage in the trial and therefore has been required to review the record with great care to prepare what will effectively be two briefs in one. 4. This amended motion relies on exceptional circumstances as grounds for the requested extension. Although counsel avoided making it public knowledge until he filed the original motion, he has lost considerable time from work due to an accident requiring surgery to repair comminuted humeral head fractures in both shoulders. Counsel was in bilateral slings for eight weeks and is still in the process of returning to ordinary work and life functions. In the meantime, physical therapy sessions, electrical muscle stimulation, ultrasonic bone stimulation, and other 2 physical aspects of recovery have limited counsel’s availability for work tasks. This situation has made successfully completing briefs and other labor-intensive work exceptionally difficult. 5. Counsel submits this amended motion to raise an additional ground that has arisen since filing the original. Upon consultation with his orthopedic surgeon, counsel has been referred to a neurologist for testing to determine whether nerve damage causing partial paralysis and severely limiting the range of motion and essential function in his left shoulder is temporary or permanent. These tests will be conducted on May 8, 2015. Because these tests will determine counsel’s long-term prognosis and the course of treatment going forward, counsel needs to give this appointment priority over all work matters. 6. Finally, though not an exceptional circumstance in and of itself, many of the issues raised in appellant’s brief require more thorough responses than the typical case. As a result, counsel needs more time than originally thought to ensure that the brief fits within the word-count limits set out in the Court’s March 12, 2015 order. Despite the circumstances described above, the undersigned expects to complete and file Appellee/Cross-Appellant’s opening brief within those limits and within the time requested in this amended motion. 3 CONCLUSION AND PRAYER For these reasons, Mercieca respectfully requests that the Court grant this motion for extension of time, thus making his opening brief due on May 15, 2015.1 Mercieca requests all other appropriate relief to which he is entitled. Respectfully submitted, SMITH LAW GROUP, P.C. /s/D. Todd Smith D. Todd Smith State Bar No. 00797451 1250 Capital of Texas Highway South Three Cielo Center, Suite 601 Austin, Texas 78746 (512) 439-3230 (512) 439-3232 (fax) todd@appealsplus.com Lead Appellate Counsel for Appellee/Cross-Appellant, Michael Mercieca 1 Per the Court’s previous order: • Microsoft’s response to Mercieca’s cross-appeal shall be due 30 days after Mercieca’s opening brief is filed (10,000-word limit); and • Microsoft’s reply brief as appellant and Mercieca’s reply brief as cross-appellant shall be due 20 days after Microsoft’s response to Mercieca’s cross-appeal is filed (7,500-word limit for each brief). 4 CERTIFICATE OF CONFERENCE In compliance with Texas Rule of Appellate Procedure 10.1(a)(5), I certify that I conferred with appellant’s lead counsel, Gretchen Sween, about the original motion. At the time, Ms. Sween informed me that appellant takes no position with respect to the motion, and appellant has not filed an opposition. /s/ D. Todd Smith D. Todd Smith CERTIFICATE OF SERVICE On May 7, 2015, in compliance with Texas Rule of Appellate Procedure 9.5, I served this document by e-service and e-mail to: Gretchen S. Sween BECK REDDEN LLP 515 Congress Avenue, Suite 1750 Austin, Texas 78701 gsween@beckredden.com Lead Appellate Counsel for Appellant/Cross-Appellee, Microsoft Corporation /s/D. Todd Smith D. Todd Smith 5