Andrew J. Norstrud v. Anna and John Cicur ( 2014 )

ACCEPTED
02-14-00364-CV
SECOND COURT OF APPEALS
FORT WORTH, TEXAS
12/29/2014 4:25:10 PM
DEBRA SPISAK
CLERK
NO. 02-14-00364-CV
________________________________________________________________________
IN THE COURT OF APPEALS FILED IN
2nd COURT OF APPEALS
SECOND COURT OF APPEALS DISTRICTFORT WORTH, TEXAS
FORT WORTH, TEXAS 12/29/2014 4:25:10 PM
________________________________________________________________________
DEBRA SPISAK
ANDREW J. NORSTRUD, Clerk
Appellant,
V.
ANNA and JOHN CICUR
Appellees.
Appeal from the 153rd Judicial District Court of Tarrant County, Texas
Trial Court Cause No. 153-273779-14
The Honorable Susan Heywood McCoy, Presiding Judge
MOTION FOR EXTENSION OF TIME TO FILE BRIEF ON THE MERITS
DYKEMA GOSSETT PLLC
/s/ Kristina M. Williams
Christopher D. Kratovil
State Bar No. 24027427
ckratovil@dykema.com
Kristina M. Williams
State Bar No. 24078303
kwilliams@dykema.com
1717 Main Street, Suite 4200
Dallas, Texas 75201
(214) 462-6400
(214) 462-6401 (fax)
ATTORNEYS FOR APPELLANT
ANDREW J. NORSTRUD
TO THE HONORABLE SECOND COURT OF APPEALS:
Appellant Andrew J. Norstrud (“Appellant”) respectfully requests
a twenty (20)-day extension of time, until and through Tuesday, February
3, 2015, under Tex. R. App. P. 10.5(b), to file his Brief on the Merits in this
proceeding. In support of this Motion, Appellant shows as follows:
I.
Background
Appellant filed Defendant’s Verified Special Appearance in the 153rd
Judicial District Court of Tarrant County, Texas (the “Trial Court”) on
September 15, 2014. See Tex. R. Civ. P. 120a. Respondent filed Plaintiff’s
Verified Response to Defendant’s Verified Special Appearance on October
23, 2014. A hearing was held on Appellant/Defendant’s Verified Special
Appearance on October 24, 2014, at which time Hon. Susan Heywood
McCoy entered an Order Overruling Special Appearance.
Appellant/Defendant filed a Request for Findings of Fact and
Conclusions of Law in the Trial Court on November 10, 2014. Tex. R. Civ.
P. 297. Appellant also filed a Notice of Appeal in the Trial Court on
November 12, 2014, see Tex. R. App. P. 26.1, and completed a Docketing
Statement in this Court on November 21, 2014, see Tex. R. App. P. 32.1.
The record was filed in this Court on November 24, 2014, and under
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Tex. R. App. P. 38.6(a), Appellant’s Brief was initially due on Monday,
December 15, 2014.
Appellant filed an Unopposed Motion for Extension of Time to File
Brief on the Merits with this Court on November 24, 2015. See Tex. R.
App. P. 10.5(b). Counsel for Appellees represented that while they
opposed Appellant/Defendant’s Request for Findings of Fact and
Conclusions of Law, they did not oppose the instant Motion for Extension
of Time. This Court granted Appellant’s Motion on December 2, 2014, and
Appellant’s Brief is currently due on Wednesday, January 14, 2015.
Appellant/Defendant filed Notice of Past Due Findings of Fact and
Conclusions of Law with the Trial Court on December 9, 2014. See Tex. R.
Civ. P. 297. On December 19, 2014, Appellees/Plaintiffs filed Proposed
Findings of Fact and Conclusions of Law with the Trial Court, despite
their prior assertion that they opposed Appellant/Defendant’s Request for
Findings of Fact and Conclusions of Law. The Trial Court signed initial
Findings of Fact and Conclusions of Law on December 22, 2014, which are
the subject of the instant interlocutory appeal.
II.
Reasons Extension of Time
Appellant seeks an extension of time to file his Brief on the Merits
because Hon. Susan Heywood McCoy entered Findings of Fact and
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Conclusions of Law on December 22, 2014, and as of the date of this
Motion, the period in which the parties may request additional or
amended findings and the Trial Court may make such additional or
amended filings has just begun, and the substance of Appellant’s Brief on
the Merits, which is currently due on Wednesday, January 14, 2015, is
contingent upon these findings and conclusions.
Despite Appellees’ counsel’s representation that he opposed
Appellant/Defendant’s Request for Findings of Fact and Conclusions of
Law when Appellant filed his initial Motion for Extension of Time to File
Brief on the Merits, on November 24, 2014, Appellees filed Proposed
Findings of Fact and Conclusions of Law in the Trial Court on Friday,
December 19, 2014. This recent filing was Appellees’ first attempt to
engage the Trial Court in making Findings of Fact and Conclusions of Law
to accompany its Order Overruling Defendant’s Verified Special
Appearance, nearly two months after the hearing on same and nearly a
month after the Trial Court’s initial deadline of November 24, 2014, to
issue Findings of Fact and Conclusions of Law passed.
The Trial Court entered initial Findings of Fact on December 22,
2014. Under Tex. R. Civ. P. 298, the parties have the opportunity to
request additional findings of fact or amendments, and the Trial Court
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may issue additional or Amended Findings of Fact. See SMI/USA, Inc. v.
Profile Techs., 38 S.W.3d 205, 209 (Tex. App.—Waco 2001, no pet). The
Trial Court must file any additional or amended findings of fact no later
than ten days after the date of the request for additional findings is filed.
Tex. R. Civ. P. 298. Thus, the Trial Court’s Findings of Fact and
Conclusions of Law, if issued, may not be finalized and helpful for the
instant appeal until Monday, January 12, 2015, at the earliest, assuming
other delay does not occur.
So that the Trial Court’s Findings of Fact and Conclusions of Law
will be finalized before Appellant must file his Brief on the Merits before
this Court, Appellant respectfully requests a twenty (20)-day extension of
time, until and through Tuesday, February 3, 2015, under Tex. R. App. P.
10.5(b), to file his Brief on the Merits in this proceeding.
III.
Request for Extension of Time and Prayer
For the foregoing reasons, Appellant respectfully requests that the
time to file its Brief on the Merits be extended twenty (20) days from
January 14, 2015, until and including Tuesday, February 3, 2015. Tex. R.
App. P. 10.5(b). This relief is not sought for the purpose of delay, but so
that justice may be done in the disposition of this interlocutory appeal.
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Respectfully submitted,
/s/ Kristina M. Williams
Christopher D. Kratovil
State Bar No. 24027427
Kristina M. Williams
State Bar No. 24078303
1717 Main Street, Suite 4200
Dallas, Texas 75201
(214) 462-6400 - Telephone
(214) 462-6401 - Facsimile
COUNSEL FOR APPELLANT
ANDREW J. NORSTRUD
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CERTIFICATE OF CONFERENCE
In accordance with the Texas Rules of Appellate Procedure, I
certify that I attempted to confer via email with Counsel to the
Appellees, Jeff Whitfield of Kelly Hart & Hallman, on December 29,
2014, but counsel for Appellees failed to respond. Therefore, the Motion
is presumed to be opposed and is presented to the Court for resolution.
/s/ Kristina M. Williams
Kristina M. Williams
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CERTIFICATE OF SERVICE
In accordance with the Texas Rules of Appellate Procedure, I
certify that a true and correct copy of this MOTION FOR
EXTENSION OF TIME TO FILE BRIEF ON THE MERITS was
served upon the following counsel of record, by regular mail and this
Court’s electronic filing system on December 29, 2014:
Hugh G. Connor
Michael D. Anderson
Jeff E. Whitfield
Kelly Hart & Hallman
201 Main Street, Suite 2500
Fort Worth, Texas 76102
/s/ Kristina M. Williams
Kristina M. Williams
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