Zimac Care Center Inc., and Virginia Akuchie v. Ngozi Nweze ( 2015 )

ACCEPTED
01-15-00716-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/3/2015 4:57:22 PM
CHRISTOPHER PRINE
CLERK
NO.01-15-00716-CV
IN THE FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
FIRST COURT OF APPEALS
12/3/2015 4:57:22 PM
CHRISTOPHER A. PRINE
AT HOUSTON, TEXAS Clerk
ZIMAC CARE CENTER, INC., VIRGINIA AKUCHIE, ET AL,
Appellants,
V.
NGOZINWEZE
Appellee
On Appeal from the 127th Judicial District Court
Harris County, Texas
Cause No. 2011-52006
APPELLANTS' RESPONSE TO APPELLEE'S MOTION TO DISMISS
Respectfully submitted,
/s/Kurt G. Clarke
Kurt G. Clarke
SBN: 04316720
6200 Savoy, Ste. 458
Houston, Texas 77036
Tel: (713) 779-5500
Fax: (713) 779-6668
E-mail: kgclaw@aol.com
Attorney for Appellants
NO.01-15-00716-CV
IN THE
FIRST COURT OF APPEALS
AT HOUSTON, TEXAS
ZIMAC CARE CENTER, INC., VIRGINIA AKUCHIE, ET AL,
Appellants,
V.
NGOZINWEZE
Appellee
On Appeal from the 127th Judicial District Court
Harris County, Texas
Cause No. 2011-52006
APPELLANTS' RESPONSE TO APPELLEE'S MOTION TO DISMISS
TO THE HONORABLE COURT OF APPEALS:
COME NOW, ZIMAC CARE CENTER, INC., VIRGINIA
AKUCHIE, ET AL, Appellants in the above styled and numbered case and
and file this response to Appellee's Motion to Dismiss and would respectfully show as
follows:
BACKGROUND
1. The trial court signed a final judgment on May 1, 2015.
2. Appellants filed a Motion for New Trial on May 29, 2015.
3. In prosecuting its Motion for New Trial, Appellants sought a date as soon as
practicable.
4. A hearing was required for a date prior to August 2015 at 10:30 a.m. See
Exhibit A attached hereto.
5. The Trial Court ruled on the Motion for New Trial on August 7,2015. See
Exhibit B.
ANALYSIS
This case presents a fairly novel question and that is whether the trial court on
August 7, 2015 had lost plenary power to rule on Appellants' motion for new trial and if it
did, what is the practitioner's dilemma. Should the practitioner have filed a notice of
appeal, and then request an abatement for the trial court to make its ruling. In hindsight, it
would have been procedurally prudent to do so.
However, it will also appear that had Appellants requested leave or an extension of
time to notice the appeal, Appellants would have had until August 20, 2015 to do so. The
Notice of Appeal was filed on August 18,2015.
This Court should allow the appeal because there was no conscious disregard, nor
willful neglect and this Court has the authority to allow Appellants leave to late file their
notice of appeal, which leave Appellants now seek for then.
This Court should allow the appeal.
WHEREFORE, PREMISES CONSIDERED, Appellants, pray that this appeal be
allowed.
Kurt G. Clarke
IslKurt G. Clarke
Kurt G. Clarke
SBN: 04316720
6200 Savoy, Suite 458
Houston, Texas 77036
Phone: (713) 779-5500
Fax: (713) 779-6668
E-mail: kgdaw@aol.com.
Attorney for Appellants
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
instrument was forwarded on this the 3rd day of December, 2015, either by
E-service provider, telecopier, first class mail, certified mail, return receipt
requested and/or by messenger to:
Robin A. Bluitt
11152 Westheimer #671
Houston, Texas 77042
Fax # (713) 978-6064
E-mail: atty.bluitt@sbcglobal.net
/s/ Kurt G. Clarke
Kurt G. Clarke
LAW OFFICES
OF
KURT G. CLARKE
ATTORNEY~ MEDIATOR~ ARBITRATOR
KURT G. CLARKE* FREDERICK O. BOADU
HELEN MALVEAUX COUNSEL TO THE FIRM
June 3, 2015
Ms. Susan Brooks
Clerk
127th District Court
Harris County, Texas
Re: Cause No. 2011-52006; Ngozi Nweze v. Zimac Care Center Inc. Et al;
In the 127th District Court, Harris County, Texas
Dear Ms. Brooks:
Kindly present Defendants' Emergency Motion to Judge Sandill's attention for
consideration.
Thank you for your usual cooperation and assistance in this matter.
Sincerely,
Kurt G. Clarke
c.c.: Robin Bluitt
6200 SAVOY DRIVE, SUITE 458, HOUSTON, TEXAS 77036
PHONE (713) 779-5500 FAX (713) 779-6668
"FELLOW - COLLEGE OF THE STATE BAR
6/3/20156:41 :48 PM
Chris Daniel - District Clerk Harris County
Envelope No. 5537449
By: Susan Brooks
Filed: 6/3/2015 6:41:48 PM
CAUSE NO. 2011-52006
NGOZINWEZE § IN THE DISTRICT COURT
(PETITIONER) §
§
VS. § 127THJUDICIAL COURT
§
ZIMAC CARE CENTER INC., §
VIRGINIA AKUCHIE, §
GERTUDE CLEVELAND, §
and FAITH BATE §
(DEFENDANTS) § HARRIS COUNTY, TEXAS
DEFENDANT'S MOTION FOR EMERGENCY HEARING ON
MOTION FOR NEW TRIAL
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Defendants Virginia Akuchie and Zimac Care Center Inc. (Zimac) et aI, and file
this Motion for Emergency Hearing on its Motion for New Trial and would respectfully show the
Court as follows:
J.
1. The above case was tried in January 2015.
2. This Court entered Judgment on May 1,2015.
3. Defendants filed a Motion for New Trial on May 29, 2015.
4. Defendants desire to have a hearing on the Motion for New Trial.
5. Defendants were advised that the next available hearing date based on the Court's schedule is
August 7, 2015.
6. Defendants request this hearing because August 7,2015 will be ninety-eight (98) days post
judgment and will deprive Defendants of any opportunity to obtain a rehearing.
7. If this case can be assigned to a visiting Judge prior to the end of June, Defendants will have no
1
objection.
8. In the alternative, Defendants ask the Court to set this matter for hearing as soon as practicable
and prior to June 30, 2015
II.
9. For these reasons, and in the interest of justice and fairness, Defendants ask the Court to conduct a
hearing, receive evidence and after the hearing grant a new trial.
Respectfully submitted,
IslKurt G. Clarke
Kurt G. Clarke
SBN: 04316720
6200 Savoy, Ste. 458
Houston, Texas 77036
Tel: (713) 779-5500
Fax: (713) 779-6668
E-mail: kgc1aw@aol.com
Attorney for Defendants
2
CERTIFICATE OF CONFERENCE
I hereby certify that I have discussed this motion on June 3, 2015, with attorney Robin
Bluitt and she is opposed to Defendants obtaining a new trial.
/s/ Kurt G. Clarke
Kurt G. Clarke
3
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing instrument was
forwarded on this the 3rd day of June, 2015, either by telecopier, first class mail,
certified mail, return receipt requested and/or by messenger to:
Robin A. Bluitt
7457 Harwin Dr. # 232
Houston, Texas 77036
Served Via Fax # (713) 978-6064 &
E-mail: atty.bluitt@sbcglobal.net
/s/ Kurt G. Clarke
Kurt G. Clarke
4
CAUSE NO. 2011-52006
NGOZINWEZE § IN THE DISTRICT COURT
(PETITIONER) §
§
VS. § 127TH JUDICIAL COURT
§
ZIMAC CARE CENTER INC., §
VIRGINIA AKUCHIE, §
GERTUDE CLEVELAND, §
and FAITH BATE §
(DEFENDANTS) § HARRIS COUNTY, TEXAS
ORDER GRANTING EMERGENCY HEARING
Came on this day, Defendants' Motion for Emergency Hearing on its Motion for New
Trial. This Court, having considered the Motion, finds that the Motion should be granted.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED THAT a hearing on
Defendants' Motion for new trial be set for ----------------- , 2015.
Signed this the __ day of , 2015.
Judge Presiding
APPROVED AS TO FORM:
IslKurt G. Clarke
Kurt G. Clarke
6200 Savoy, Suite 458
Houston, Texas 77036
Tel. (713) 779-5500
Fax. (713) 779-6668
CHRIS DANIEL
District Clerk
Houston, Texas 77002
KU`` GODFREY CLARKE
SAVOY DR SUITE 458
"ON TX 77036
CASE 2011C",:'006 CRT 127 BE ADVISED ON 08/07/2015 THE FOLLOWING ACTIVITY OCCURRED.
NWEZE, 11(; I Oms) vs. ZIMAC CARE CENTER INC
ORnER ~ "NG MOTION FOR NEW TRIAL SIGNED
CA::E 2CJ55 CRT 157 BE ADVISED ON 08/07/2015 THE FOLLOWING ACTIVITY OCCURRED.
BAILEY I' ii IE LEMONS (INDIVIDUALLY AND VS. CHRISTUS HEALTH GULF COAST
ORDER G:U ING OBJECTION TO DISCOVERY REQUEST SIGNED
JlHOC