Airlinx Communications, Inc. v. Ultra Electronics Advanced Tactical Systems, Inc. ( 2015 )

ACCEPTED
03-15-00637-CV
7834074
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/16/2015 8:54:16 AM
JEFFREY D. KYLE
CLERK
NO. 03-15-00637-CV
IN THE COURT OF APPEALS FOR THE FILED IN
3rd COURT OF APPEALS
THIRD JUDICIAL DISTRICT OF TEXAS AT AUSTIN AUSTIN, TEXAS
_________________________________________________________
11/16/2015 8:54:16 AM
JEFFREY D. KYLE
AIRLINX COMMUNICATIONS, INC., Clerk
APPELLANT,
v.
ULTRA ELECTRONICS ADVANCED TACTICAL SYSTEMS, INC.,
APPELLEE.
_________________________________________________________
From The District Court Of Travis County, 353rd Judicial District,
Cause No. D-1-GN-12-002873; The Honorable Karin Crump Presiding
APPELLEE’S MOTION TO DISMISS APPEAL
JEFFREY J. HOBBS
State Bar No. 24012837
jhobbs@abaustin.com
MARK L. HAWKINS
State Bar No. 00790843
mhawkins@abaustin.com
ANDREW F. YORK
State Bar No. 24066318
ayork@abaustin.com
ARMBRUST & BROWN, PLLC
100 Congress Avenue, Suite 1300
Austin, Texas 78701
(512) 435-2300 – telephone
(512) 435-2360 – facsimile
ATTORNEYS FOR APPELLEE
TO THE HONORABLE COURT OF APPEALS, THIRD DISTRICT OF TEXAS:
Appellee Ultra Advanced Tactical Systems, Inc. files this Motion to Dismiss
Appeal, and respectfully shows the Court as follows:
A. Appellant’s Notice of Appeal Was Untimely.
The Court should dismiss Appellant’s appeal because it was not timely
perfected. The trial court signed its Final Judgment and Order Confirming
Arbitration Award on July 15, 2015. CR 391-397. As the Court noted, Appellant
was required to file its notice of appeal on or before August 14, 2015, but
Appellant’s Notice of Appeal was not filed until October 7, 2015. CR 403;
November 3, 2015 letter from Jeffrey D. Kyle, Clerk, to Tjalling Hoiska. To avoid
dismissal of the appeal for want of jurisdiction, the Court required Appellant to
provide either (1) proof of timely mailing of the Notice of Appeal to the trial court,
or (2) an affidavit swearing that the filing was mailed to the district clerk on or
before August 14, 2015. November 3, 2015 letter from Jeffrey D. Kyle, Clerk, to
Tjalling Hoiska.
In response, Appellant did not submit proof that it ever mailed its Notice of
Appeal to the district clerk, timely or otherwise. Instead, Appellant’s president,
Tjalling Hoiska, filed an affidavit parroting the language of the Court’s directive,
swearing under oath that “[t]he Notice of Appeal for this trial court case was
mailed to the district clerk’s office on or before August 14, 2015,” without even
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offering a date on which the Notice of Appeal was supposedly mailed. Affidavit of
Tjalling P. Hoiska at ¶ 3. Mr. Hoiska’s affidavit is at best confused, and at worst
false testimony.
Mr. Hoiska signed the Notice of Appeal on October 7, 2015, the same day it
was electronically filed with the district court. CR 403. Mr. Hoiska now claims
that despite signing the Notice of Appeal on October 7, 2015, he had previously
mailed it to the district clerk on some unidentified date, before it was actually
signed and filed. Moreover, in its Docketing Statement, Appellant confirmed that
the Notice of Appeal was filed on October 7, 2015, and where the form requests,
“[i]f mailed to the trial court clerk, also give the date mailed,” Appellant left the
answer blank, indicating that the Notice of Appeal was never mailed. Docketing
Statement at § V.
Given those prior representations and circumstances, Mr. Hoiska’s sworn
testimony that he timely mailed a post-dated notice of appeal to the district clerk
strains credibility. The Court should disregard it, and dismiss Appellant’s appeal
for want of jurisdiction.
B. Appellant Cannot Pursue This Appeal Pro Se.
As an alternative, the Court need not resolve Mr. Hoiska’s dubious
testimony, and instead can dismiss this appeal because Appellant is not represented
by an attorney. Appellant is a corporation, and purports to be represented by its
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president, Mr. Hoiska, who is not an attorney. Docketing Statement at § I
(confirming Appellant’s organizational status and its appearance pro se) and § X
(stating “N/A” for Tjalling Hoiska’s State Bar number); Affidavit of Tjalling P.
Hoiska at ¶ 2 (testifying that Tjalling Hoiska is Appellant’s president).
In Texas, a corporation must be represented by a licensed attorney, and it
cannot act pro se through a corporate officer who is not an attorney. Chavez v.
Pugh, No. 03-15-00395-CV, 2015 WL 5781113 at *1 n.1 (Tex. App.—Austin Oct.
2, 2015, no pet.) (mem. op.) (noting corporation’s president could not represent
corporation pro se); Rose Air, LLC v. Brazoria County Appraisal Dist., No. 01-13-
01085-CV, 2014 WL 2538630 at *1 (Tex. App.—Houston [1st Dist.] June 5, 2014,
no pet.) (mem. op.) (dismissing limited liability company’s appeal because it was
not represented by counsel); MHL Homebuilder LLC v. Dabal/Graphic Resource,
No. 14-05-00295-CV, 2005 WL 1404475 at *1 (Tex. App.—Houston [14th Dist.]
June 16, 2005, no pet.) (mem. op.) (same).
Because Appellant is not represented by counsel, the Court should dismiss
Appellant’s appeal.
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PRAYER
Based on the foregoing, Appellee Ultra Electronics Advanced Tactical
Systems, Inc. respectfully requests that the Court grant its Motion to Dismiss
Appeal and enter an order dismissing Appellant’s appeal and taxing all costs
against Appellant.
Respectfully submitted,
/s/ Jeffrey J. Hobbs
JEFFREY J. HOBBS
State Bar No. 24012837
jhobbs@abaustin.com
MARK L. HAWKINS
State Bar No. 00790843
mhawkins@abaustin.com
ANDREW F. YORK
State Bar No. 24066318
ayork@abaustin.com
ARMBRUST & BROWN, PLLC
100 Congress Avenue, Suite 1300
Austin, Texas 78701
(512) 435-2300 – telephone
(512) 435-2360 – facsimile
ATTORNEYS FOR APPELLEE
CERTIFICATE OF CONFERENCE
I hereby certify that the undersigned counsel for Appellee conferred with
Tjalling Hoiska, Appellant’s president, regarding the foregoing motion, and Mr.
Hoiska has stated that Appellant opposes the motion.
/s/ Jeffrey J. Hobbs
Jeffrey J. Hobbs
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been served
by electronic filing and electronic mail to the following on November 16, 2015:
Tjalling P. Hoiska
Airlinx Communications, Inc.
Box 253
Greenville, NH 03048
thoiska@airlinx.com
/s/ Jeffrey J. Hobbs
Jeffrey J. Hobbs
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