Grace Instrument Industries, LLC v. Melden Schmidt and OFI Testing Equipment, Inc. ( 2015 )

ACCEPTED
14-15-00269-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
5/19/2015 2:08:26 PM
CHRISTOPHER PRINE
CLERK
NO. 14-15-00269-CV
FILED IN
IN THE COURT OF APPEALS 14th COURT OF APPEALS
HOUSTON, TEXAS
FOURTEENTH JUDICIAL DISTRICT
5/19/2015 2:08:26 PM
HOUSTON, TEXAS
CHRISTOPHER A. PRINE
Clerk
GRACE INSTRUMENT INDUSTRIES, LLC,
Appellant,
FILED IN
14th COURT OF APPEALS
v. HOUSTON, TEXAS
5/19/2015 2:08:26 PM
MELDEN SCHMIDT and OFI TESTING EQUIPMENT, INC.,
CHRISTOPHER A. PRINE
Clerk
Appellees.
On Appeal from the 1 l 3th Judicial District Court
of Harris County, Texas
Trial Court No. 2014-33726
APPELLEES, MELDEN SCHMIDT AND OFI TESTING EQUIPMENT,
INC.'S, MOTION TO EXTEND TIME TO FILE APPELLEES' BRIEF
Appellees, Melden Schmidt and OFI Testing Equipment, Inc., pursuant to
Texas Rules of Appellate Procedure 38.6(d) and 10.S(b), request this Court extend
the time to file their Appellees' brief in this cause for sixty (60) days, until July 21,
2015, and would show as follows:
CERTIFICATE OF CONFERENCE
Appellees' counsel conferred with Appellant's counsel prior to filing this
motion. Appellant is opposed to the extension Appellees request herein.
PROCEDURAL HISTORY
Proceedings in Trial Court
1. On March 2, 2015, the 113th Judicial District Court of Harris County,
Texas, signed an interlocutory order granting Appellees' Motion for No-Evidence
Summary Judgment in Cause No. 2014-33726; Grace Instrument Industries, LLC
v. Me/den Schmidt and OF! Testing Equipment, Inc. By its order, the trial court
dismissed all of Appellant's claims against Appellees. Appellees' counterclaims
against Appellant remain pending before the trial court.
2. On April 1, 2015, Appellant filed its motion for permission to appeal the
trial court's Interlocutory Summary Judgment in the trial court, which
Appellant titled "Motion for Interlocutory Appeal."
3. On April 23, 2015, Appellees filed their response m opposition to
Appellant's motion for permission to appeal. Thereafter, on April 24, 2015,
Appellant filed its reply.
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4. On April 27, 2015, the trial court denied, 1n its entirety, Appellant's
motion for permission to appeal. 1
Proceedings in Appellate Court
5. In addition to its motions in the trial court, Appellant also improperly filed
an untimely notice of appeal on March 23, 2015. Appellant then filed a Motion
for Extension of Time to File Application for Interlocutory Appeal on April 2,
2015. 2 This Court denied Appellant's Motion on April 20, 2015.
6. Furthermore, on April 21, 2015, the Clerk of this Court notified the
parties by letter that, "[a]ccording to the clerk's record, the judgment or order
being appealed is not a final, appealable judgment. The court will consider
dismissal of the appeal on its own motion for want of jurisdiction unless any
party files a response on or before May I, 2015, showing meritorious grounds
for continuing the appeal."
7. On April 27, 2015, consistent with the Court's order, Appellees filed their
Motion to Dismiss Appellant's appeal for lack of jurisdiction. In their Motion, and
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Concurrently with this Motion, Appellees have also filed a Supplement to their Motion to
Dismiss notifying this Court that the trial court denied Appellant's request to appeal the
interlocutory order. As this Court is aware, for a court of appeals to consider whether to permit
the appeal of an interlocutory order that is not otherwise appealable, a trial court, on its own
initiative or on a party's motion, must first grant permission to appeal the interlocutory order.
TEX. R. APP. P. 28.3(a) & cmt.; TEX. R. Clv. P. 168 & cmt.; see TEX. CIV. PRAC. & REM. CODE
§51.014(d). Thus, where, as here, the trial court denies permission to seek an interlocutory
appeal, this Court should dismiss the appeal.
2
Notably, by its own request, Appellant admits it appeals an interlocutory order.
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surely consistent with the Clerk's own observation, Appellees explained this Court
lacks jurisdiction over the appeal because the trial court's order did not dispose of
all issues between all parties and thus, was not a final appealable judgment.
8. Inexplicably, that same day, Appellant filed its appellate brief, wherein it
argued the merits of its appeal, but wholly failed to identify any jurisdictional
basis for the appeal, notwithstanding the Court's clear request for briefing on
the jurisdictional basis for Appellant's appealing a judgment which is not final.
After Appellant filed its brief, the Court set a deadline of May 22, 2015 for
Appellees to file their brief.
REQUEST FOR EXTENSION
9. As it currently stands, Appellees brief is due May 22, 2015. However,
Appellant has not responded to Appellees' Motion to Dismiss or provided this
Court with a sufficient jurisdictional basis for its appeal as ordered. As this
Court's ruling on Appellees' jurisdictional challenges could negate the need for
Appellees' brief, Appellees request this Court extend Appellees' deadline to file
their brief in order to give this Court an opportunity to consider whether it has
jurisdiction over Appellant's appeal.
10. This is Appellees' first motion for extension of time to file their brief and
Appellees request a sixty (60) day extension, up to and including Tuesday, July 21,
2015, in which to file their brief.
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11. Even if it the Court finds inappropriate for Appellee to incur the otherwise
and obviously unnecessary expense of the preparation and filing of a brief in an
appeal where the Court is unquestionably without jurisdiction, Appellee requires
an extension because of intervening trial settings that will otherwise preclude
Appellee from submitting its brief by the current, May 22, 2015, deadline.
Specifically, these include trial in the matter styled Hobart v. City ofStafford, et al,
Cause Number 9-cv-03332, in the United States District Court for the Southern
District of Texas, which will begin trial on May 26, 2015 and is expected to last at
least one week as well as the matter styled Diamond-Brooks v. Berryman, Cause
Number l 2-cv-03482, in the United States District Court for the Southern District
of Texas, which is scheduled to begin trial immediately upon the conclusion of the
Hobart trial. Additionally, while not binding upon this Court Appellee's counsel
has a vacation letter on file with the Harris County District Clerk, in accordance
with the Harris County District Courts' vacation procedures for a family vacation
between June 13 and June 20, 2015.
8. In order to allow this Court an opportunity to determine whether there
is jurisdiction over this appeal at all and to allow Appellee's counsel reasonable
time to prepare and file a responsive brief, if necessary, Appellees seek this
extension not for delay, but so that justice may be done.
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PRAYER
Appellees pray that the Court grant their motion and extend the time to file
their brief by sixty (60) days, up to and including, Tuesday, July 21, 2015.
Respectfully submitted,
CHAMBERLAIN, HRDLICKA, WIDTE
WILLIAMS & AUGHTRY
By: Isl William S. Hel{and
William S. Helfand
State Bar No. 09388250
Bill.Helfand@Chamberlainlaw.com
Josh N. Bowlin
State Bar No. 24036253
Josh.Bowlin@Chamberlainlaw.com
1200 Smith Street, Suite 1400
Houston, Texas 77002
Telephone: (713) 658-1818
Telecopier: (713) 658-2553
COUNSEL FOR APPELLEES MELDEN SCHMIDT
AND OFI TESTING EQUIPMENT, INC.
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has
been forwarded to all counsel of record on this 19th day of May, 2015, in the
manner indicated below:
Via E-Filing
Alfonso Kennard, Jr.
Ronald Dupree Jr.
Kennard Law P.C.
5433 Westheimer Rd., Suite 825
Houston, Texas 77056
Fax: 713-742-0951
Isl Josh N Bowlin
1900700.1
120691 .. 000001
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